For me, it was the pause. I knew that the confirmation hearings for Ketanji Brown Jackson would produce a lot of insults and smears from Republicans trying to be racist enough for Fox News viewers to get the message but not so racist that The New York Times would have to acknowledge it. Jackson surely knew it too. And despite over 20 hours of questioning over two days, during which Republicans yelled at her and grandstanded and repeatedly insinuated that she was a terrorist and child-sex-trafficker sympathizer in front of her daughters and parents, she never once lost her cool.
But she did take one really long pause. During Tuesday’s opening round of questions, Senator Ted Cruz went into full racist smear mode. Cruz is a former law school classmate and Harvard Law Review colleague of Jackson’s, but as for many, many white boys from that school, the comity and collegiality of a shared alma mater only seems to extend to fellow whites. Jackson is a Black woman, and Cruz’s teeth were out. He was trying to scare white voters by implying that Jackson was a black radical who believes in “critical race theory” and would use her position on the court to put dangerous thoughts in the minds of white children.
Only it was Ted Cruz doing this, so his teeth were crooked, dull, and almost unintentionally comical. Cruz came prepared with posters, like an office manager who never learned how to use PowerPoint. The posters were blown-up pages from a children’s book, Antiracist Baby, written by Dr. Ibram X. Kendi, so the images were of a blobbishly drawn, racially indistinct baby in a diaper playing with blocks. Remember, this is in the middle of a Senate confirmation hearing for a lifetime appointment to the highest court in the land, and Cruz was up there with his picture-book report and arts and crafts. Cruz pointed to his poster and, in his most wolfishly serious voice, asked, “Do you agree…that babies are racist?”
Jackson started to answer. She said, “Senator.” And then she sighed. And then she paused. For a long time. As the silence filled the room, I felt like I could see Jackson make the same calculation nearly every Black person and ancestor has made at some point while living in the New World. It’s the calculation enslaved people made before trying to escape to freedom, or activists made before sitting down at the white lunch counter. But it’s also the calculation a woman makes before responding to the e-mail of the failson who was just promoted ahead of her, or the calculation I make when a white executive comments on my Twitter feed but not my published columns. It’s the calculation when black people try to decide: “Am I gonna risk it all for this?”
Jackson took a moment to decide if it was worth it to throw everything away—her chance, her good name, maybe even her whole career—just to tell Ted Cruz, a man she’s known for over 25 years, what she really thought of him.
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She decided against it, of course. She eventually spoke: “I do not believe that any child should be made to feel as though they’re racist…” She then resumed her normal posture and didn’t repeat the sigh, or the pause, for the rest of the hearing.
Toni Morrison says “the very serious function of racism is distraction,” but Jackson knew it wasn’t worth being distracted by Cruz, or any of the small-minded and condescending white people arrayed against her on the Senate Judiciary Committee. She’s worked too hard and bested too many of the white man’s little traps to get tripped up near the finish line by senators who debase themselves and their offices for 30 seconds of attention on Tucker Carlson’s show. Jackson passed her test.
But it was hard to watch her be put through the crucible of white approval. The attacks used by Republicans against her weren’t about her qualifications: Everybody knows she’s more than qualified to be on the Supreme Court, and even most of the Republicans said so. The attacks weren’t about her personal behavior or ethics: Again, even Republicans remarked that she had lived a good life and there’s been no whiff of scandal, and no suggestion of sexual assault (which is not something you can say for all Supreme Court nominees).
Instead, Republicans simply pronounced her guilty by association with people and stereotypes of people they don’t think belong in America. Take Cruz’s attacks on books he doesn’t like. There was no evidence that Jackson had read Antiracist Baby or any of Kendi’s other books, or if she likes them or agrees with them. And even if she had read the book, there was no evidence that Judge Jackson uses her Kindle as her list of sources for her opinions. But it didn’t matter. Kendi’s Black, and Jackson’s Black, so for some reason it’s okay to ask Jackson to answer for the ideas in Kendi’s book. Cruz claims he was asking because the book is in the library at this school Jackson sent her kids to, but the book is also in the library of the school Cruz sends his kids to.
Or take me. Jackson was asked by Senator Marsha Blackburn if she agreed with a “Demand Justice board member” (that’s me) who has argued in favor of “adding 10 justices to the Supreme Court” (my actual position is 20 now). I’ve never met Jackson, and there’s no evidence that she’s even heard of me, or has read my court expansion arguments, or agrees with them. But I’m Black, and she’s Black, so for some reason it was okay to ask her about it.
Of course, the highlight attack on Jackson was about her record as a sentencing judge, specifically in child pornography and drug cases. Jackson’s record here is mainstream and tracks with what other district judges do in similar cases—including judges confirmed by Republicans and one promoted by Senator Josh Hawley, who led these attacks against her. Hawley’s attacks are so baseless that even the conservative National Review has told him to knock it off.
But for some reason Republicans think these charges of “soft on crime” and “soft on porn” will stick. Senator Tom Cotton criticized Jackson for not consulting victims of a “drug kingpin” she sentenced, and when Cotton was told that there were no actual victims on the record for her to consult, he lashed out and told her to talk to the “hundred thousand” victims of “drug crimes”—as if the man she sentenced should be sentenced for crimes he didn’t commit. Senator John Cornyn literally worried that Jackson might be “compassionate”—as if that’s a bad thing in a justice appointed for life. The upshot is that Jackson was being criticized not for her mainstream actions but for her participation in a criminal justice system Republicans always characterize as too lenient to “criminals” when trying to scare white voters.
It was emotionally affecting to watch Jackson, a ridiculously accomplished Black woman, be forced to dance to the tune of these mediocre white senators who were trying to reduce her to a caricature. But you don’t have to take my word for it. Senators Cory Booker and Alex Padilla, who both happen to be people of color, both gave impassioned defenses of the nominee on the second day of questioning. Both choked up while doing so: Booker while saying he wasn’t going to let the rest of the Senate “steal my joy,” Padilla while recounting how teachers once told him he shouldn’t bother trying to get into MIT.
People should notice what kinds of nominees senators feel empathetic toward. Back in 2018, it was Republicans like Lindsey Graham who were getting emotional—in that case, in his defense of prep school bro Brett Kavanaugh, accused of attempted rape by a credible, named witness who gave testimony before the Senate. Republicans acted personally offended on behalf of Kavanaugh, and four years later they were still bringing him up during Jackson’s hearing. Cruz even derisively referred to the allegations of attempted rape as an inquiry into the nominee’s “teenage dating habits.” Cruz couldn’t be more odious if he showed up to work in the cologne of a skunk.
I think it’s a grave insult to Jackson to put her in the same sentence as Kavanaugh, but my mind couldn’t avoid juxtaposing the two over the course of the hearing. Surprisingly, Senator Thom Tillis put my frustrations into words near the end of the second day of questioning. Tillis (after joining fellow Republicans in saying a bunch of stupid stuff about her record) praised Jackson’s demeanor, and reflected on how hard it must be for her during the hearings. He noted that there are 11 [Republican] senators against one. And he acknowledged that these senators have way more power in the hearing room—because “it’s not like you can really come at us.”
The statement, while offered in good faith, is one that only applies to a woman or a person of color. Because we all know from the Kavanaugh hearings that white men who are up for confirmation can yell and scream and cry and threaten the Senate. They can “come at” the Senate; they can do exactly what Tillis, accurately, said Jackson cannot. Nothing at all bad will happen to white men who scream at senators. In fact, it helps them. People, white people, who are part of the institution that has just been screamed at, will say that the yelling and the threats were justified and applaud the white man for “standing up for himself.”
Which is why the moment from Jackson’s Supreme Court confirmation hearing that will be indelible in my hippocampus is the pause. In that pregnant moment, everybody in the whole country who was watching got to see whiteness at work. Everybody knew that Ted Cruz got to stand up there and call Ketanji Brown Jackson whatever he wanted to, and nobody would stop him. Everybody knew that Jackson could not respond in kind if she wanted the job. And everybody knew that, in the same situation, Kavanaugh could and did sneer at his questioners, threaten the Senate with political retribution, and declare his undying love for beer, without hurting his chances at unaccountable lifetime power. Power he now holds.
That pause, that moment, that clear difference in the range of human possibilities afforded to Jackson and Kavanaugh—that’s racism, folks. That’s sexism. That silence was a clearer definition of the thing than I could give in a thousand words. I can’t prove it, but I saw it. And Jackson saw it. And Booker saw it. And Padilla saw it. And I can only hope that people of good faith and decency saw it too.
Because if you can’t see it, then you are useless in the fight to stop it.
