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Ketanji Brown Jackson would add diversity to the Supreme Court, but not in the way you think

March 22, 2022, 5:54 PM UTC

If you’ve got the time (and can stand the political theater) a truly historic moment is playing out on national television right now.

Judge Ketanji Brown Jackson is making history this week as she sits before a Senate panel considering her nomination to be the first Black woman to serve on the U.S. Supreme Court in its 233-year history. Her confirmation would give the nine-member court four women and two Black justices for the first time ever. She will also be the second-ever working mother.

The political posturing is predictably playing on both sides of the aisle.  And though the anti-Brown antics have been unusually unhinged—and have been keeping fact-checkers working overtime—Judge Brown has a stellar resume and is uniquely overqualified.

Her path to this moment has taken some familiar routes. She graduated cum laude from Harvard Law School where she served as supervising editor of the Harvard Law Review. She was a clerk for three federal judges including Supreme Court Associate Justice Stephen Breyer. She currently sits on the U.S. Circuit Court of Appeals for the D.C. Circuit, where she easily received Senate approval.

But one entry on her resume stands out from her peers: If confirmed, Jackson will be the first justice who has ever served as a federal public defender. She will also be the first one since Thurgood Marshall to represent poor defendants as a criminal defense attorney. It has clearly shaped her. She’s written articles about inequities in the justice system and worked to reduce mass incarceration as part of her role serving on the federal Sentencing Commission.

Hers is a point of view long overdue.

“What judges see is often shaped by the experiences that they had,” Alicia Bannon, director of the Brennan Center for Justice’s Judiciary Program tells the Washington Post. “Having to navigate the criminal justice system on behalf of poor defendants gives a judge an important perspective on how the criminal justice system operates and on the potential unfairness or hurdles within it.”

But Jackson also has the experience of being a Black woman attempting to ascend in the legal profession embedded in her bones.

Jackson, who was discouraged from applying to Harvard, arrived in Cambridge in the late 1980’s, a time of intense debate about race and free speech on campus, in a part of the country still roiling from riots, protests, and unrest.

After a Confederate flag was flown on campus, interpreted as a threat by the Black Student Association, Jackson joined students in protest—with an important caveat. “Ketanji said: ‘Wait a minute, as we’re doing this, we’re missing out on classes,” Antoinette Coakley, a classmate of Brown recalled to the New York Times. “As we’re fighting against this injustice, we’re actually doing them a service because we’re going to be failing.” Coakley, who is now a law professor, said the strategy worked. “We were going to show them that by showing up the way that we did—excellently—that they were wrong.”

She has served in a profession that is wildly overrepresented by white men, with white women a close second. According to the ABA National Lawyer Population Survey, some 86% of lawyers are non-Hispanic white people, and just 5% of all lawyers are Black, a number which has hasn’t budged in a decade. (The race numbers are not disaggregated by gender, unfortunately.)

The federal judicial system isn’t much better, according to numbers compiled by the Center for American Progress. Some 73% of sitting federal judges are men and 80% are white, and 27% of sitting judges are women. And breakthrough appointments didn’t happen until late in the game: The first Black justice, Thurgood Marshall, was appointed in 1967. The first female justice, Sandra Day O’Connor, was appointed in 1981. And Deborah A. Batts, the first openly LGBTQ federal judge, was not appointed until 1994.

And even as she interviews for the top spot in the judiciary, she is being asked for her LSAT scores, derided for her overachievement, and painted as a soft-on-crime liberal.

I choose to believe she is unbothered by the fuss, having heard it all before.

That said, this week is shaping up to be historically rough, as lawmakers make statements designed for campaign soundbite fodder, or relitigate grievances from previous confirmation hearings.

But don’t let the beclowning dampen your enthusiasm for the moment. She may be your pick, she may not be. But she’s earned the seat she’s in. “I can only hope that my life and career, my love of this country, and the Constitution will inspire future Americans,” she said at the announcement of her appointment.

For another former Harvard classmate, it’s already happening.

“It’s not just about the people who look like her who are getting inspiration from her. It’s about all of us looking and realizing what it means for what’s possible,” says Lisa Fairfax, now a law professor at the University of Pennsylvania. “It’s just another instance where we can say that this is the America that we all want to be a part of. The dream is possible.”

Ellen McGirt

This edition of raceAhead was edited by Wandy Felicita Ortiz.

On background

SCOTUS in 2017 cited racist testimony in ordering new sentencing in Texas death penalty case  This is a perfect example of the kind of reparative work in the criminal justice system that is still necessary. The testimony in question delivered by a psychologist was damning: Black defendants are more dangerous than white ones. The defendant in question, Duane Buck, had been convicted of the 1995 murder of his girlfriend and a friend. But that “particularly noxious strain of racial prejudice,” was inexcusably prejudicial. In a majority 6-to-2 decision, Chief Justice John G. Roberts Jr. wrote that the psychologist’s report “said, in effect, that the color of Buck’s skin made him more deserving of execution.”
New York Times

What it means to be the working poor  Although his book, Evicted: Poverty and Profit in the American City, is a few years old, the lessons it reveals are more important than ever. This work from Harvard social scientist and ethnographer Matthew Desmond, a prolific researcher on the intersection of poverty, race, and gender, is a wrenching look into the lives of the financially vulnerable, and how losing their homes triggers a cascade of negative events, while others are enriched. In this essay, he explains why jobs are not the answer to help the working poor. “America prides itself on being the country of economic mobility, a place where your station in life is limited only by your ambition and grit,” he writes in the New York Times. “But changes in the labor market have shrunk the already slim odds of launching yourself from the mailroom to the boardroom.” It is a wrenching and well-reported read.

In this essay, Chauncey DeVega argues persuasively that Americans alternately hate and fear the poor. Poverty is traumatizing, very expensive, and the working poor lack basic services that could help them live comfortable and dignified lives. "Ultimately, social inequality in America is the predictable (if not intentional) result of a political and economic system that is anything but meritocratic," he writes. "America may not have kings and queens and titled nobility, but it has a plutocracy and a system of dynastic wealth that operates much the same way."

It doesn't help that homes in poor neighborhoods are taxed at twice the rate of those in wealthy ones. Or that millions of workers can't afford both food and rent.

Parting words

"A child born to a Black mother in a state like Mississippi... has exactly the same rights as a white baby born to the wealthiest person in the United States. It's not true, but I challenge anyone to say it is not a goal worth working for."

Thurgood Marshall


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