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BrandonHoltSecondEssay 3 - 07 Jun 2022 - Main.BrandonHolt
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| | | 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. | |
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< | A series of questions emerge from this exchange. 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 realities of the country’s history as colonial settlers and relentless perpetuation of racial violence? And as a utility, what is the function of judicial confirmation hearings? Are there functions other than the political ascendancy of the participating actors, namely the questioning senators? While these are important in the abstract, a more curious analysis, and the focus of this discussion, specifically considers how these exchanges land when they are directed towards Black jurists. | >
> | 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 about anti-Black racism that supports using the law and judiciary 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.” It was probably a fair response, especially considering that 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. |
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