When Black women break barriers, the reaction is often predictable. Detractors find various ways to say she doesn’t belong: She’s unqualified, she’s radical, she’s a beneficiary of affirmative action.
That playbook was on display in the U.S. Capitol this week as Ketanji Brown Jackson, the first Black woman to be nominated to the U.S. Supreme Court, was questioned by members of the Senate Judiciary Committee. Some Republican members sought to paint her as a radical, grilling her on critical race theory and anti-racist books in schools. Others cherry-picked cases from her legal experience to characterize her as an unpatriotic judge who supports terrorists and goes easy on sexual predators of children.
As the first Black woman elected mayor of Mount Vernon, New York, Shawyn Patterson-Howard was disturbed by the line of questioning. After watching the first day of Jackson’s confirmation hearing, she “couldn’t stomach” sitting through a second.
“I think for anyone – especially a woman of color, who has been through that type of blistering attack – it could cause PTSD,” said Patterson-Howard, who is vice president of the African American Mayors Association. “Her facial expressions and the glimmer and sometimes disgust in her eyes are all very relatable.”
More from Capital B: The Supreme Court Debate Reveals the Unique Ways Black Women Are Questioned
When New Jersey Sen. Cory Booker gave his closing remarks on Wednesday – bringing Jackson and many Black Americans nationwide to tears – Patterson-Howard felt relief. He “championed” for Jackson, she said, and spoke the words that, if expressed by the nominee, would have made her come off as “an angry Black woman.”
“He spoke what she couldn’t speak,” Patterson-Howard said. “My heart broke because what [Republicans] hadn’t been able to elicit from her was those tears. I believe they wanted to make her cry.”
You can read the full text of Booker’s speech below, with annotations.
Booker: Thank you very much, judge. After me, only 5 to go. But sit back for a second, ‘cause I don’t have questions right away. I actually have a number of things I just want to say, because this has been not a surprise given the history that we all know – not a surprise, but perhaps a little bit of a disappointment, some of the things that’ve been said in this hearing.
Capital B insight: While Booker wasn’t specific about “the history that we all know,” many of President Biden’s nominees of color have been hazed by some Republicans during confirmation hearings or have withdrawn their nominations amid public attacks. During the confirmation hearings for Kristen Clarke and Vanita Gupta to high-ranking positions in the Justice Department, the women received few questions from Republicans about their legal expertise. Instead, Clarke was made to defend an op-ed she coauthored for her school newspaper as a teenager and Gupta apologized for Twitter posts she had written criticizing Republicans.
The way you have dealt with some of these things, that’s why you are a judge and I am a politician because you have sat with grit and grace and have shown us just extraordinary demeanor during the times where people were saying things to you that are actually out of the norm. I had to go up dais to ask some of my more senior colleagues about what I feel like is a dangerous precedent. People are taking a thousand cases you’ve been over – is that right? I’m sorry I said I wouldn’t ask you questions but just give me …
Jackson: Something like that.
Booker: Something like that. And from what I understand, these cases sometimes take days, weeks, sometimes months, right?
Jackson: To decide in a case? Yes.
Booker: There’s a trial sometimes, and folks are taking any of those cases and just trying to pick pieces out. And so my my colleague Senator Hawley has been doing this all into the lead up, and saying things, tweeting things that I think that a lot of us, when I was just trying to get some advice here, is this is what the new standard’s going to be: that any judge coming before us that has ever chosen outside of the sentencing guidelines, below the sentencing guidelines. We’re creating this environment now where I can make myself the hero of people who have been victims of some horrible crime and suddenly put whatever judge I want on the defensive by trying to drag out little bits when they have no context to the case – none of the facts.
Capital B insight: Sen. Josh Hawley, a Republican from Missouri, has been publicly questioning Jackson’s sentencing of child pornography offenders, characterizing her track record as excessively lenient. His charges have been widely dismissed, even by some on the right. Booker seems to be establishing a sense of common, bipartisan ground on what he views as insincere attacks and criticisms of Judge Jackson meant to score political points with the victims and loved ones of child sex crimes.
They’re seeking to exploit the complexities of a criminal justice system, the reason why we have a third branch of government. I feel bad that there was a judge mentioned by name in this hearing that’s from Senator Hawley’s state. What is that judge going to think next time that they have a complicated sexual abuse case that comes before them? And they know that they could possibly be called out if they go below the sentencing guidelines, which I showed you yesterday in my lack of chart – if you remember, I was uncharted – but that you are deciding completely in the norm. Seventy-plus percent in many states are people doing just like you did.
Capital B insight: Booker is making a joke about the Republican senators who used prepared charts to reinforce their points during questioning of Jackson. Republican Sen. Ted Cruz of Texas displayed a chart of eight cases in which Judge Jackson sentenced a defendent below the prosecutor’s recommendation and the sentencing guidelines.
It’s not clear where Booker is getting the “70-plus” statistic, but his point that it’s not uncommon for judges to hand down sentences outside of guidelines is valid. A 2017 report from the Sentencing Commission shows that at least 21% of offenders received sentences below the guidelines. In one case that Republican senators mentioned, Judge Jackson sentenced an 18-year-old to three months in jail for possession of child pornography. Jackson explained that while there are sentencing guidlines, trial judges are not bound to abide by them and have discretion in handing down appropriate sentences on a case-by-case basis.
But I’m a Democratic senator. I’ve never quoted from this very well-respected conservative periodical – this is the National Review, very well-respected and not something I agree with all the time. But here’s what the National Review – this is the title: “Senator Hawley’s disingenuous attack against Judge Jackson’s record on child pornography.” I’ll just read the first paragraph:
“I would oppose Judge Ketanji Brown Jackson because of her judicial philosophy for the reasons I outlined last week. I addressed that in a separate post. For now, I wanted to discuss the claim by Senator Josh Hawley that Judge Jackson is appallingly soft on child pornography offenders. The allegations appear meritless to the point of demagoguery.”
I got letters from leaders of victims’ rights groups, survivors of assault. All saying sort of the same thing as the National Review. Feel proud about yourself; you brought together right and left in this calling out of people that will sit up here and try to pull out from cases, and try to put themselves in a position where they’re the defenders of our children to a person who has children, to a person whose family goes out in the streets and defends children. I mean, this is a new low.
Capital B insight: Judge Jackson’s brother, Ketajh Brown, was a Balitmore police officer and served in the Army.
And what’s especially surprising about this is it didn’t happen last year. You were put on a court that I’m told is considered, like, the second most powerful court in our land, and you were passed with bipartisan support. Nobody brought it up then. Did they not do their homework? Were they lax? Did they make a mistake? I wonder – as they ask you the question, ‘Do you regret?’ – I wonder if they regret that, that they didn’t bring that out. No, why? Because it was an allegation that is ‘meritless to the point of demagoguery.’
Capital B insight: Last year, Judge Jackson was confirmed with bipartisan support to serve on the appellate court in Washington, D.C. Republican Sens. Lindsey Graham of South Carolina, Lisa Murkowski of Alaska and Susan Collins of Maine, voted to confirm her for that position. Yet, earlier this week, Graham stormed out of Judge Jackson’s confirmation hearing after questioning her about her sentencing decisions on child pornography cases. It’s not clear if Collins and Murkowski will vote for Judge Jackson this time.
You are – I don’t mean this in any way, ‘cause if anybody called me average I would be upset – but you are a mainstream judge. Your sentencing, I’ve looked at the data, falls in the mainstream on everything from child sexual assault to all the other issues that people are trying to bring up. Some of these things that are being cast at you, that you called George Bush a war criminal? Come on, that is painful, especially ‘cause as you said, the brief changed. These are names that you have to put in. And we’re talking about a real issue that goes to the core of our values: torture. Barack Obama was named once he, once Bush left office. There is an absurdity to this that is, it is almost comical if it was not so dangerous.
Capital B insight: As a federal defender, Judge Jackson represented accused terrorists in a case related to torture and inhumane treatment at Guantanamo Bay. In court filings, she said that former President George W. Bush committed acts that constitute war crimes. Because the United States is protected from lawsuits by sovereign immunity, Judge Jackson explained, “you have to file it against individual officers in their official capacity. … So whoever is the executive at the time becomes the named party in the brief.”
Because the next time a judge comes before us on the right or the left that has a body of work like you do, gosh, one of … some performance artists on our side could pull out one of the cases where they were below the sentencing guidelines. Say, for example, it was on something as horrific as rape, that we all agree is horrific, and they could suddenly put themselves at the defend – “How dare we put someone who’s soft on crime …” Well, are you soft on crime? God bless America.
I got this great text. I’ve become really good friends with folks at the FOP [Fraternal Order of Police] for my negotiations, and this was my favorite text. You all gotta get this. I think my brother Kennedy might get a kick out of this. He goes, “Things that are uncountable: Stars in the sky, grains of sand on the beach, and the number of times Democrats will mention that the FOP endorsed Judge Jackson in this hearing.” [laughter] But let me mention it again, just in case my people say, your-rough-on-crime folks really want to try to make that stick. You were endorsed by the largest organization of rank-and-file police officers. You were endorsed by the bosses, the largest organization of chiefs of police. And you were endorsed by NOBLE, who I hope people find out more about that organization. You got uncles that are officers. You got a brother, not just an officer, who went to serve after 9/11. Your family’s not soft on terrorism; he went out there to capture and kill and defend this country from terrorists. I’m actually sitting back here and finding this astonishing, but then I do my homework.
Capital B insight: While the national Fraternal Order of Police did not agree with all of Judge Jackson’s views on reducing mandatory minimums while she served on the U.S. Sentencing Commission, they “reached important compromises” and have “found that collaboration works far better than confrontation,” according to FOP’s statement of support for the judge’s nomination.
Frederick Thomas, president for the National Organization of Black Law Enforcement Executives (NOBLE), testified on behalf of Judge Jackson on the last day of the confirmation hearings. The organization “represents over 3,400 members worldwide that consist of chief executive officers and command-level law enforcement officials from federal, state, county, municipal law enforcement agencies, and criminal justice practitioners,” according to Thomas’s opening remarks.
I love that my colleague brought up Constance Baker Motley. You know when she was getting to the floor of the Senate, they were trying to stop her with outrageous accusations. You know what the accusation was back then? She was a communist – dragging up stories, trying to throw anything that they [thought] might stick. But this is what you and I know: Any one of us senators could yell as loud as we want that Venus can’t return a serve; we can yell as loud as we want that Beyoncé can’t sing; we can yell as much as we want that astronaut Mae Jemison didn’t go all that high. But you know what? [Booker brushes off his shoulder] They’ve got nothing to prove.
Capital B insight: Constance Baker Motley was the first Black woman to serve as a federal judge, appointed in 1966. Judge Jackson mentioned throughout the hearing that Motley is an inspiration to her. NASA Astronaut Mae Jemison made history in 1992 when she became the first Black woman to travel in space.
As it says in the Bible, “Let the work I’ve done speak for me.” Well, you have spoken. You started speaking as a little girl, watching that man right there try to raise a family and study law while your mama supported everybody. You spoke in high school, when you started distinguishing yourself. And you know what you said when they told you you couldn’t go to Harvard? “Watch me.” I went to law school; I didn’t serve on the Law Review – you did. I didn’t clerk at every level of the federal court; you clerked for a Supreme Court justice, one widely respected on both sides, which really shaped you. You left there and you went to private practice, and you know what you found? This is what you told me: That you had those tough choices that working moms have to make, the demands of a private law firm, raising your kids – it just didn’t add up. You went before the Senate three times in a bipartisan manner – god bless America, we don’t do that much stuff bipartisan around here. You went to become a public defender ‘cause you wanted to understand all aspects of the law – who does that? We live in a society that’s very materialistic sometimes, very consumeristic. You went – do people become public defenders for the money? No. Your family and you speak to service, service, service.
Capital B insight: Judge Jackson clerked for Justice Stephen Breyer in 1999, and if confirmed, will fill the seat left by Justice Breyer’s retirement. She later worked in private practice for Morrison & Foerster LLP., a firm focused on criminal and civil appellate litigation. She also worked for Kenneth Feinberg, a mitigation attorney known for getting compensation for victims of the Sept. 11 terrorist attacks.
Judge Jackson is the first Supreme Court nominee to have served as a public defender. Legal experts hope that her experience will bring balance to the court and a different perspective when the panel is faced with criminal justice matters.
And I’m telling you right now, I’m not letting anybody in the Senate steal my joy. I told you this at the beginning, I’m embarrassed. It happened earlier today: I just look at you and I start getting full of emotion. I’m jogging this morning, and at the end of the block I live on – ‘cause I put my music on loud when I’m jogging, trying to block out the noise of the heart attack I’m having – and this woman comes up on me, practically tackles me, an African American woman. And the look on her eyes – she just wanted to touch me, ‘cause I think ‘cause I’m sitting so close to you – and tell me what it meant to her to watch you sitting where you’re sitting. And you did not get there because of some left-wing agenda. You didn’t get here ‘cause of some dark money groups. You got here how every Black woman in America who has gotten anywhere has done: by being like Ginger Rogers said, “I did everything Fred Astaire did but backwards in heels.”
And so I’m just sitting here saying nobody’s stealing my joy, nobody’s going to make me angry, especially not people that are called in a conservative magazine “demagogic” for what they’re bringing up that just doesn’t hold water. I’m not gonna let my joy be stolen, because I know – you and I – we appreciate something that we get that a lot of my colleagues don’t. I know Tim Scott does.
Capital B insight: Despite ending legislative negotiations on the George Floyd Justice in Policing Act last year, Sen. Tim Scott has on multiple occasions addressed the issue of race and racism in policing in America, including his own negative experiences being profiled by law enforcement. Most notably, during a Senate floor speech in 2016, Scott described being pulled over by police seven times in a single year. “The vast majority of the time, I was pulled over for nothing more than driving a new car in the wrong neighborhood or some other reason just as trivial.”
In reminding his fellow senators of Scott’s remarks on anti-Black racism, Booker is keeping with the bipartisan theme of his address to Judge Jackson. He’s establishing the existence of racism in America as a bipartisan reality rather than the debatable premise some conservatives position it as.
When I first came to this place I was the fourth black person ever popularly elected to the United States Senate, and I still remember a lot of mixed people – white folks, Black folks – work here, but at night when people are in line to come in to clean this place, the percentage of minorities shift a lot. So I’m walking here, first week I’m here, and somebody’s been here for decades doing the urgent work of the Senate, but it’s the unglamorous work that goes on no matter who’s in offices, guy comes up to me and all he wants to say, I can tell, is “I’m so happy you’re here.” But he comes up, he can’t get the words out, and this man, my elder, starts crying. And I just hugged him and he just kept telling me, “It’s so good to see you here; it’s so good to see you here. Thank you, thank you, thank you.”
I love my brother Tim Scott, we could write a dissertation on our disagreements. He gave the best speech on race – I wish I could have given as good of a speech – but talking to the challenges and indignities that are still faced. And you’re here.
I was in the White House with my Democratic colleagues – and again, I’m in my joy; I can’t help it – and the president is asking for advice, who should be nominated, whatever. And I look at Kamala, and we have a knowing glance, which we’ve had for years when she and I used to sit on this end of this committee, at times. And then I try to get out to the president what it means – what it means.
Capital B insight: At this point, Booker touches his heart, pauses and appears to get choked up, reflecting the emotions many feel when a racial barrier is broken. In the Supreme Court’s more than 230 years of existence, only two Black people have been confirmed to the panel and both were men: Thurgood Marshall in 1967 and Clarence Thomas in 1991. Judge Jackson’s professional and personal experiences bring a different perspective to the court, where she will weigh in on issues like voting rights, abortion and qualified immunity.
And I want to tell you, when I look at you, this is why I get emotional. I’m sorry, you’re a person that is so much more than your race and gender. You’re a Christian, you’re a mom, you’re an intellect, you love books. But for me, I’m sorry, it’s hard for me not to look at you and not see my mom, not to see my cousins, one of them who had to come here and sit behind you. She had to have your back. I see my ancestors and yours. Nobody’s going to steal the joy of that woman in the street, or the calls that I’m getting, or the texts. Nobody’s going to steal that joy. You have earned this spot. You are worthy. You are a great American.
Your hero is Constance Baker Motley. Mine, she’s sat on my desk for my offices that I’ve held. She’s my icon of America. Her name is Harriet Tubman. There’s a love in this country that is extraordinary. You admitted it about your parents. They loved this nation even though there were laws preventing them from getting together. When they were loving, there were laws in this country that would have prevented you from marrying your husband. It wasn’t that long ago; it was the last generation. But they didn’t stop loving this country, even though this country didn’t love them back.
Capital B insights: Jackson’s husband, Patrick Jackson, is white. In the 1967 case Loving v. Virginia, the Supreme Court ruled that state laws forbidding interracial marraige were unconstitutional. Jackson met her husband, now a surgeon, when the were undergraduates at Harvard University. They have two daughters: Talia, 21, and Leila, 17.
And what were the words of your heroes and mine? What did Constance Baker Motley do? Did she – this country that she saw insults and injuries, when she came out of law school, law firms wouldn’t even hire her because she was a woman. Did she become bitter? Did she try to create a revolution? No, she used the very Constitution of this nation. She loved it so much, she wanted America to be America. As Langston Hughes wrote,
Let America be America, again,
The land that never has been yet,
But yet must be the land where everyone is free.
I say it plain,
America never was America to me,
but I swear this oath, America will be!
That is the story of how you got to this desk. You and I and everyone here, generations of folk who came here and said, “America, I’m Irish. You may say no Irish or dogs need apply, but I’m gonna show this country that I can be free here. I can make this country love me as much as I love it.” Chinese Americans – forced into near slave labor building our railroads, connecting our country – saw the ugliest of America. But they were going to build their home here, saying “America, you may not love me yet, but I’m going to make this nation live up to its promise and hope.” LGBTQ Americans from Stonewall, women to Seneca, hidden figures who didn’t even get their play until some Hollywood movie talked about them and how they were critical for us defying gravity. All of these people loved America.
Capital B insights: Booker appears to be referring to the first women’s rights political assembly, known as the Seneca Falls Convention, which was hosted in Seneca Falls, New York in 1848. During the two-day gathering of women’s rights supporters, writer and activist Elizabeth Cady Stanton unveiled the Declaration of Sentiments, a manifesto outlining the grievances and demands of the women in attendance.
And so you faced insults here that were shocking to me, well actually not shocking. But you are here because of that kind of love, and nobody’s taking this away from me. So you got five more folks to go through, five more of us, and then you can sit back and let us have all the debates. And I’m going to tell you, it’s going to be a well-charted Senate floor, because it’s not going to stop, they’re going to accuse you of this and that. Heck, in honor of your person who shares your birthday, you might be called a communist. But don’t worry, my sister, don’t worry. God has got you. And how do I know that? You’re here, and I know what it’s taken for you to sit in that seat.
Capital B insight: Jackson and Motley both were born 49 years apart on September 14. Motley died in 2005 at age 84. Judge Jackson is 51.
Harriet Tumban is one of my heroes because the more I read about this person, the more – I mean, she was viciously beaten. Her whole life she used to fall under spells, cracked skull. She faced starvation, chased by dogs. And when she got to freedom, what did she do? She rested? No, she went back, again and again and again. The sky was full of stars, but she found one that was a harbinger of hope – for better days. Not just for her and those people who were enslaved, but a harbinger of hope for this country. She never gave up on America. She fought in – led troops in the Civil War. She was involved in the suffrage movement. And as I came back from my run, after being near assaulted by someone on the street, I thought about her and how she looked up, she kept looking up. No matter what they did to her, she never stopped looking up. And that star was a harbinger of hope.
Today, you’re my star. You are my harbinger of hope. This country is getting better and better and better. When that final vote happens and you ascend onto the highest court in the land, I’m gonna rejoice. And I’m gonna tell you right now: The greatest country in the world, the United States of America, will be better because of you. Thank you