Dishonesty in Judicial Conformation Hearings

-- By BrandonHolt - 27 Apr 2022

Introduction

In an April 2021 joint confirmation hearing for seats on the United States Courts of Appeal, Judge Kenjanji Brown Jackson and now Judge Candace Jackson-Akiwumi—importantly, two Black women jurists—were both asked whether they believed the federal judicial or criminal legal systems were “systemically racist” or “infested with systemic racism or bias.” As asked by two white male Republican senators, this line of questioning appeared more like entrapment than a genuine inquiry into the presence or absence of equity in the Judiciary. Unsurprisingly, both Brown Jackson and Jackson-Akiwumi necessarily rejected—or, more generously, perhaps pivoted—the question by concluding that “systemic racism” was not a recognizable legal cause of action. Their nominations would have suffered otherwise.

The exchange was consistent with the tradition of judicial confirmation hearings since their inception in the early 1900s, where nominees hide any formed view, or worse agenda, on topical political issues. The guise for the obfuscation is that the nominee may adjudicate the questioned issue if confirmed. Outside of political theater, confirmation hearings have served little value and they certainly do not clarify a nominee's substantive disposition.

But a curious element of this tradition is that nominees more than hide a view or agenda; they seem expected to not have one all together. Both the existence and admission of a view or agenda are the traps nominees seek to avoid. As this extends to most contested political issues, race and racism, specifically anti-Black racism, are particular agenda traps around which nominees may dance. But why? With respect to the function of race in American law, what is the required disposition to ascend to a seat within the judiciary? Is it the rejection of the country’s history as colonial settlers and its continued perpetuation of racial violence? This essay is concerned with what it means to expect, and perhaps require, a Black jurist to not have a view or agenda on anti-Black racism that supports interpreting the law for meaningful Black liberation.

The Problem

Exchanges about the place of racial consciousness in the judiciary was intensified in Brown Jackson’s subsequent confirmation hearing for a seat on the United States Supreme Court, where she was expected to become the first Black woman justice. Senators Ted Cruz and Marsha Blackburn, in particular, questioned whether Brown Jackson believed “babies [were] racist” and whether it was Brown Jackson’s “personal hidden agenda to incorporate critical race theory into our legal system.” Similar to her Court of Appeals confirmation, Brown Jackson shut down inquiries about her view on “critical race theory” as “not com[ing] up in [her] work as a judge.”

While Brown Jackson's response was probably fair to survive the hearing, it may also have been incomplete. Critical race theory is a legal discipline that considers how to shape the law for the benefit of historically marginalized racial communities. There can undoubtedly be an application of the theory in the work of a justice. For example, the opinion for an anti-discrimination case before the Court may scrutinize precedents like Davis and Feeny, which restrict disparate impact standards to prove cognizable discrimination. Specifically, the opinion may use the interdisciplinary framework of critical race theory to consider the impact of such holdings and the degree to which they limit actionable claims of discrimination by Black claimants. Based on this analysis, the Court could further (re)define unlawful discrimination by considering what populations need to be the target of a discriminatory act for that discrimination to be cognizably unlawful (rather than blanketing any racial distinctions as worthy of strict scrutiny).

But Cruz and Blackburn did not evoke critical race theory to mean the intersectional legal discipline that evaluates the subjugation of Black people and how the law can be reimagined to eradicate racial inequality. Instead, the senators used the language of “critical race theory” as a dog whistle to conservative bases to imply imaginary liberal movements that seek to "marginalize" white people. Regardless of whether Brown Jackson actually held a view or opinion that aligns with the suggestion offered here on how critical race theory may be applied as a justice, the senators weaponized the tradition of obfuscation in confirmations to attempt to elicit a denial of systemic racism from a Black jurist.

The Impact

Aziz Rana pointedly wrote about the history that allows denials of the US's perpetuation of racial violence to remain in mainstream dialogue in “Colonialism and Constitutional Memory.” She argued that America denies its settler roots and subjugation of Native and African people because the American Constitution, as a symbol, “sustains a particular narrative of the country as free and equal from the founding.” Rather than reckoning with this history, America’s insistence in “read[ing] a liberal and egalitarian identity into the country’s founding” obfuscates the necessity to engage in “structural transformation.” Rana further contemplated the impact of this dishonesty on Black radical and civil rights movements in the mid-twentieth century. She argued that these movements, by necessity, appealed to the narrative of American liberalization and possibility. The majority’s dishonesty “required [B]lacks to deny that their sustained experience of enslavement and subordination embodied an essential, perhaps irredeemable, truth about the nation’s character.”

This dissonance continues and in many ways contributes to the dance that is the judiciary generally but also judicial confirmation hearings specifically. The judiciary is framed as an apolitical body that merely adjudicates the controversies before it. But the judiciary’s work does not happen in a vacuum. The judiciary determines and informs how we are organized as a society and that is a deeply political function. When you combine the lack of honesty about the role and nature of the judiciary with the dishonesty around the political identity of the country, the result is the inability of judicial nominees to meaningfully engage in dialogue about how to rectify the country’s past harm and shape the country’s future.

But perhaps meaningful dialogue about how to serve the country is not actually the objective we want, let alone expect, from confirmation. I have a hard time calling to mind any occasion in the history of the republic on which they have served this purpose. Actual testimony by nominees to any office, judicial, executive or diplomatic began only in the 20th century. Confirmation hearings as we have come to know them are political broadcasting shows; if we don't want them to be that, why hold them at all?

Indeed, I'm not sure this essay really has confirmation as its subject. Let's ask what this essay would be about if the Senate did its advising and consenting without hearings. You would still have a subject, it seems to me, and the subject of that essay is probably the subject of this one's next draft: What does it mean, in fact, for a Supreme Court Justice to have an agenda? What kind of an agenda does a Justice actually have and how does he or she go about obtaining what it calls for?

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