- Alexis Hoagprofessor at Brooklyn Law School.
Republican senators grilled Judge Ketanji Brown Jackson over her views on critical race theory on the second day of her confirmation hearing to become the first Black woman on the U.S. Supreme Court. “The Republicans are mischaracterizing, misquoting, taking out of context words and speeches that Judge Jackson has made,” says Alexis Hoag, professor at Brooklyn Law School. The non sequiturs create a distraction for “a woman who is overqualified for this position,” Hoag adds. Hoag is a former federal public defender and also discusses the significance of Jackson’s background as a federal public defender.
AMY GOODMAN: As we continue to look at day two of Senate hearings for Supreme Court nominee Ketanji Brown Jackson, who will make history if she becomes the first Black woman and first public defender to serve on the nation’s highest court, on Tuesday, Judge Jackson rejected Republican accusations that her sentences in child sexual abuse cases were lenient, saying she ordered, quote, “strict sentences and all of the additional restraints available in the law.” Republicans went after Judge Jackson on a number of issues that have become flashpoints for the right.
Republican Senator Marsha Blackburn was accused of racism after she used her opening statement to attack Judge Jackson Monday and asked if she had a, quote, “personal hidden agenda” to incorporate critical race theory into the legal system. On Tuesday, Blackburn moved to ask Jackson about a brief she co-signed in 2001 that described anti-abortion demonstrators as a “hostile, noisy crowd.” This is part of their exchange.
SEN. MARSHA BLACKBURN: Let me ask you this: When you go to church, and knowing there are pro-life women there, do you look at them thinking of them in that way, that they are noisy, hostile, in your face? Do you think of them? Do you think of pro-life women like me that way?
JUDGE KETANJI BROWN JACKSON: Senator, that was a statement in a brief made —
SEN. MARSHA BLACKBURN: OK.
JUDGE KETANJI BROWN JACKSON: — in argument for my client. It’s not the way that I think of or characterize people.
SEN. MARSHA BLACKBURN: OK, all right. Thank you for the clarification on that, because I think even zealous advocacy doesn’t allow that type of rhetoric on a free speech issue.
AMY GOODMAN: Earlier in the day, Republican Senator Ted Cruz tried to tie Judge Ketanji Brown Jackson to critical race theory. He asked about her role as a member of the board of trustees at the Georgetown Day School listing books in the school’s curriculum, as he waved them in the air.
SEN. TED CRUZ: They include How to Be an Antiracist by Ibram Kendi. They include literally stacks and stacks of books. And I’ll tell you two of the ones that were most stunning. They include a book called Antiracist Baby by Ibram Kendi, and there are portions of this book that I find really quite remarkable. One portion of the book says, “Babies are taught to be racist or antiracist. There is no neutrality.” Another portion of the book, they recommend the babies confess when being racist. Now, this is a book that is taught at Georgetown Day School to students in pre-K through second grade, so 4 through 7 years old. Do you agree with this book that is being taught with kids that babies are racist?
JUDGE KETANJI BROWN JACKSON: Senator, I do not believe that any child should be made to feel as though they are racist or though they are not valued or though they are less than, that they are victims, that they are oppressors. I don’t believe in any of that. But what I will say is that when you asked me whether or not this was taught in schools, critical race theory, my understanding is that critical race theory as an academic theory is taught in law schools.
AMY GOODMAN: In response to this exchange, author Ibram X. Kendi tweeted, quote, “You know Judge Ketanji Brown Jackson has impeccable credentials—and you know you’re doing the work—when @tedcruz questions her about your books since he can’t touch her record.”
For more, we’re joined by Alexis Hoag, professor of law at Brooklyn Law School.
Welcome to Democracy Now! Before we start in on all of this — and we’d like you to weigh in — this issue of her being a public defender, so that people can examine every case. It’s highly unusual for judges, let alone Supreme Court justices, to have a past where they were a public defender. Can you talk about the significance of this?
ALEXIS HOAG: Great, yeah. Good morning, Amy, and thank you for having me. I, too, served as an assistant federal public defender in an appellate unit, before I transitioned into academia. And I, too, am proud of my experience.
And the federal public defender program in which Judge Jackson worked — ironically, for only two years of over a 20-year legal career — it is part of the federal judiciary. So she would have been an employee of the federal court system. And a federal public defender, any public defender, is there to uphold the constitutional rights of this country and of individual defendants. And I’m speaking primarily, although not exclusively, of the Sixth Amendment right to counsel. And our adversarial system of justice, which is a hallmark of the American legal system, depends on the fact that you have two parties that are well represented: One is the government, the prosecution; the other is the individual defendant. And so, our system of justice does not function unless you have capable, effective counsel representing people who have been accused of crimes.
And having that kind of experience has been something that, until President Biden began to prioritize it in judicial nominees, has been a disfavored professional experience. And so, I am excited at the fact, and I think we should all be in this country excited and proud of the fact, that someone with her rich, diverse experience representing people accused of crimes is now a nominee for the highest court. And we have lacked that experience since Justice Thurgood Marshall left the bench in ’91. He was the last person who had regularly represented people who were accused of crimes, although not as a public defender but as an attorney at the NAACP Legal Defense Fund.
And there, I also spent time working there, before teaching, as a senior counsel. And at LDF, there’s a strategic goal to help dismantle racial inequality. And so, in Thurgood Marshall’s representation of people accused of crimes, it was to advance that goal and that interest. So, at LDF, he would pick and choose which clients to represent. And I just want to underscore the fact that Judge Jackson, as a federal public defender, could not and did not choose which clients to represent. She was responsible for representing whatever client in that jurisdiction was assigned to her office and then assigned to her as a member of the federal defenders.
JUAN GONZÁLEZ: And, Alexis Hoag, what were some of the moments that stuck out to you from yesterday’s hearing?
ALEXIS HOAG: Good morning, Juan. Several moments stuck out to me from yesterday’s hearing. Just in the exchange that you played with Senator Cruz, I felt that sigh in my bones. And what we’re seeing here is a supremely, in many ways, overqualified candidate for this role having to navigate, at times with a little bit of exasperation, distractions. So, she’s not actually being asked about her qualifications and experience to serve on the U.S. Supreme Court when Ted Cruz asks her about children’s books that are available at a private school. And she has continually reminded Senator Cruz and other senators that, as a judge, she doesn’t deploy or engage with critical race theory. She’s had to tell senators that she’s not a biologist, she can’t define what a woman is for them. She has a clear methodology as a judge, which is to review briefs, identify relevant law, apply the law to the facts, and then come up with a conclusion. And so, all of this distraction, the political grandstanding, is in many ways disrespectful.
JUAN GONZÁLEZ: And assuming she is confirmed, she would become one of three, quote, “liberal” justices on the Supreme Court, all of them women, with Elena Kagan and Sonia Sotomayor. Your expectation of what she would bring to the court even as a member of sort of the court minority?
ALEXIS HOAG: Yeah, so I’m hopeful that Judge Jackson, in the context of the Supreme Court, would also be able to convince perhaps others on the court to side with sort of a liberal wing of the court. So, Chief Justice Roberts is quite concerned with the legitimacy of the court as an institution. And we have seen in some of his rulings a desire for consensus or to not necessarily vote on clear ideological lines. And so my hope is that Judge Jackson can convince Chief Justice Roberts and others from the right to join her and Justice Kagan and Sotomayor as they thoughtfully navigate some of these issues that are coming before the court. So I’m hopeful that given her diverse experiences, professionally and personally, that she’s able to be someone who can convince others to join her, Kagan and Sotomayor on some of the very important personal individual rights issues that come before the court.
AMY GOODMAN: I wanted to ask you about the first day of Judge Jackson’s confirmation hearing, when Republican Senator Marsha Blackburn accused her of praising The 1619 Project, The New York Times collection of essays that seeks to, quote, “reframe the country’s history by placing the consequences of slavery and the contributions of Black Americans at the very center of our national narrative.” This is Senator Blackburn.
SEN. MARSHA BLACKBURN: You have praised The 1619 Project, which argues the U.S. is a fundamentally racist country. And you have made clear that you believe judges must consider critical race theory when deciding how to sentence criminal defendants. Is it your personal hidden agenda to incorporate critical race theory into our legal system?
AMY GOODMAN: Alexis Hoag, if you could respond? Also, the Republican Party itself, the GOP tweet that shows the Jackson initials, KBJ, crossed out and replaced with the acronym CRT, as well as the link to a list of important questions for KBJ, if you can talk about this?
ALEXIS HOAG: Sure. So, critical race theory has become a flashpoint for the Republican Party. And most people outside of legal academia had not heard of critical race theory, or CRT, before Trump inserted it into an executive order just a few years ago. And then it started to pop up frequently on late-night Republican sort of right-wing talk shows, radio programs.
But critical race theory is really a theoretical framework that was developed by law students and law professors in the early ‘80s, and it stemmed from critical legal studies. And it was a way that people who were engaged in the study of law could help make sense of why the civil rights movement wasn’t delivering racial equality coming out of the 1960s. I had the good fortune of studying with Derrick Bell, professor Derrick Bell, who passed away a little over 10 years ago, but he was seen as one of the intellectual founders of CRT.
And so, the fact that now it has been whittled down to really a rallying cry for the right to somehow characterize a discussion about racism or a way in which structural racism operates in this society has really divorced it from its true meaning and its true context. And so, when Senator Blackburn, Marsha Blackburn from Tennessee, uses CRT, it’s really to tailor a message to the right-wing base. And they’re using it as a rallying cry, a fundraising tool, and it’s completely divorced from its actual meaning and the way that it operates.
And when asking Judge Jackson about The 1619 Project, I believe her words were that it was “provocative.” And so, this idea that somehow she would use The 1619 Project in her judicial rulings is just a disingenuous characterization. And that’s what we’re routinely seeing, and I know we’ll continue to see on day three of the hearings, is that the Republicans are mischaracterizing, misquoting, taking out of context words and speeches that Judge Jackson has made, and then we find that the Democrats are then being put on the defensive, having to correct the record, giving Judge Jackson an opportunity to explain herself in a very sort of defensive mode. And this is all a distraction, again, from a woman who is overqualified for this position.
AMY GOODMAN: Alexis Hoag, we want to thank you for being with us. I want to let our viewers and listeners know, Democracy Now! is live-streaming these hearings from 9 a.m. Eastern time. Yesterday’s went for more than 13 hours. And we’ll do it again today. Alexis Hoag, professor of law at Brooklyn Law School, former federal public defender.
When we come back, we look at the latest with Russia’s invasion of Ukraine. Stay with us.