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.

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 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.

Because critical race theory is a legal discipline that considers how to shape the law for the benefit of historically marginalized racial communities, if asked in good faith, there could have been a meaningful exchange about race in the law. For example, this could have led to dynamic discussions about Supreme Court precedents like Davis and Feeny, which restrict disparate impact standards to prove cognizable discrimination. This may have also included conversations about how the Court should (re)define unlawful discrimination perhaps 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). This would be no less uncomfortable as disagreements will always exist about how to organize a society and remedy harms, but the point is that the exchange could be meaningful and honest.

The Impact

Instead, intellectual and factual dishonesty preclude this result. Aziz Rana pointedly wrote about the history of this dishonesty 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.

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