Judge Ketanji Brown Jackson and the Myth of Meritocracy
4.7.2022
Multiple studies have shown that diversity of experiences and thoughts actually increases the creativity, productivity and even profitability of businesses.[1] When it comes to judicial bodies, studies show that having diversity (a person of color or a woman) on a panel of judges creates different – often better – results.[2]
History has also shown us that an increase in representation on bodies of power (like the Legislature and judiciary) result in the expansion of civil rights and personal freedoms for more members of the population.[3]
So why has it taken so long for Black woman to be nominated to the United States Supreme Court? Probably because of the circus we have seen during Judge Ketanji Brown Jackson’s confirmation hearings.
Even before she was nominated, there were complaints that President Biden’s pledge to nominate a Black woman to the Supreme Court was “racist.”[4] Never mind that white men are 30% of the population but make up 60% of all state judges and 80% of all federal court judges. There are currently 23 states where there are no judges of color.[5] However, nominating a Black woman – heretofore unrepresented in the entire existence of the Supreme Court – was the racist act, not the prior exclusion.
There is a graphic making the rounds on social media comparing Judge Jackson’s qualifications to all sitting Supreme Court justices; she is the only judge to check off all the boxes (Ivy League education; clerked for the Supreme Court; sat on the Sentencing Commission; was a district court judge; and was a federal Court of Appeals judge). In addition, she is the only likely justice to have been a public defender for a large part of her legal career. And yet, she has been derided as “unqualified,” “elitist” and “soft on crime.”
The official Twitter account of the Republican National Committee posted a picture of Judge Jackson on March 22, 2022, with the initials “KBJ” crossed out and “CRT” written in.[6] The Federalist Society dubbed her nomination by President Biden as an “affirmative action” pick.[7] Conservative media darling Tucker Carlson asked to see her LSAT scores – something that no other Supreme Court nominee has ever had to do – and called her nomination an attempt to “defile” the court.[8] Congressman Josh Hawley tweeted that Judge Jackson “has a pattern of letting child porn offenders off the hook for their appalling crimes, both as a judge and a policy maker. She’s been advocating for it since law school.”[9] This accusation is so outrageous that even the conservative National Review called it “meritless to the point of demagoguery.”[10] The “soft on crime” chant is being repeated incessantly, despite the American Bar Association’s unanimous rating of Judge Jackson as “well qualified” to serve on the United States Supreme Court[11] and that body’s unprecedented rebuttal of claims that her sentencing was biased or favorable to criminals.[12]
So what did we learn from Judge Jackson’s appointment and confirmation hearing?
First, that the myth of meritocracy is alive and well in the United States. White America tells people of color that all things are equal now and that if we only pull ourselves up by the bootstraps, we, too, can achieve the American dream. Yet, we saw a woman who had excelled her whole life – who graduated magna cum laude from Harvard University and cum laude from Harvard Law School, who clerked for Supreme Court Justice Stephen Breyer – be reduced to a few talking points about affirmative action and CRT because of the color of her skin. Apparently, “merit” can only conferred upon those who look like those in power; thus, instead of a meritocracy, we have a “mirrortocracy.”
Second, that Black women continue to be undervalued and underappreciated in the workforce. We have all seen the statistics showing women are paid less than men; what these statistics do not account for is intersectionality. While white women are paid 80 cents for every dollar paid to a white man, a Black woman is only paid 63 cents for that same dollar.[13] I raise this here because it shows a pervasive mentality – Black women are treated as less worthy. It is impossible to unsee the anger displayed by the (mostly) white legislators at the mere thought that a Black woman could enter the inner sanctum of true power that is the Supreme Court of the United States. Indeed, despite being arguably more qualified than all of the sitting justices, the gatekeepers insist on keeping the Black woman out.
This is further displayed by the microaggressive comments made by certain members of Congress regarding Judge Jackson. Senate GOP whip John Thune of South Dakota said, “She’s been articulate and done a nice job in terms of her tone and demeanor,” but would not be voting to confirm her nomination.[14] Senator Ted Cruz of Texas accused her of embracing critical race theory, despite having no proof to support the accusation.[15] Senator Mitch McConnell of Kentucky released a statement calling her an “activist,” “soft on crime” and again misrepresented her sentencing record, stating, “The Judge regularly gave certain terrible kinds of criminals light sentences that were beneath the sentencing guidelines and beneath the prosecutors’ requests.”[16] (This has been debunked by multiple organizations; in particular, Judge Jackson relied on the probation officers’ reports when assessing sentencing, a practice that has been deemed proper and is also used by other judges.[17])
Every Black woman I spoke to had the same reaction to the nomination and confirmation hearing of Judge Ketanji Brown Jackson: initial elation at the nomination, which turned into anger at her treatment in the media and in the hearings. The word used most was “triggering.” As Black women, we have all been where Judge Jackson is: doing exceptional work but being devalued and treated as unworthy; carefully measuring our words, checking our emotions and/or holding back tears, lest we be accused of being the “angry Black woman.”
When New Jersey Senator Cory Booker came to speak, I realized my hands had been balled into fists for the duration of the hearing because now I released them. I waited with bated breath as he told Judge Ketanji Brown Jackson to “sit back” and catch her breath while he spoke. He told her how historic her nomination to the Supreme Court was, saying to her, “You have earned this spot. You are worthy.”[18]
As Judge Jackson finally released the tears that she had been holding back, I cried with her. For that moment, she was seen as a whole person and not as an interloper, attempting to storm the gates into somewhere where she did not belong and was not wanted. It harkened back to the story Judge Jackson told of being at Harvard University, feeling like she did not belong there, when another Black woman she did not know passed by her and whispered, “Persevere.”
Even now, when Judge Jackson has been confirmed to sit on the Supreme Court, she will have to continue persevering. We now know she is up to the task.
Mirna Martinez Santiago is the founder of Girls Rule the Law, an organization to introduce middle and high school girls to the law. She is a DEI consultant at www.mirnasantiago.com and co-chairs NYSBA’s Committee on Diversity, Equity and Inclusion. Santiago has been featured in Latina magazines and on NBC News speaking about Afro-Latino experience.
[1] Anna Powers, A Study Finds That Diverse Companies Produce 19% More Revenue, Forbes, June 27, 2018, https://www.forbes.com/sites/annapowers/2018/06/27/a-study-finds-that-diverse-companies-produce-19-more-revenue/?sh=6b8edc8d506f.
[2] Diversity on the Bench, Brennan Center for Justice, https://www.brennancenter.org/issues/strengthen-our-courts/promote-fair-courts/diversity-bench.
[3] Sophie Schuit and Jon C. Ragowski, Race, Representation, and the Voting Rights Act, Am. J. of Poli. Sci. 61(3), (July 2017), 513–26, https://www.jstor.org/stable/26379507.
[4] Martin Pengelly, Cruz: Biden promise to put Black woman on supreme court is racial discrimination, Guardian, Feb. 20, 2022, https://www.theguardian.com/law/2022/feb/20/ted-cruz-biden-promise-black-woman-supreme-court.
[5] Alicia Bannon and Janna Adelstein, State Supreme Court Diversity—February 2020 Update, Brennan Center for Justice, Feb. 20, 2020, https://www.brennancenter.org/our-work/research-reports/state-supreme-court-diversity-february-2020-update.
[6] Philip Bump, GOP drops any subtlety in centering the Jackson nomination fight on race, Wash. Post, Mar. 22, 2022, https://www.washingtonpost.com/politics/2022/03/22/gop-drops-any-subtlety-centering-jackson-nomination-fight-race.
[7] Jordan Boyd, Democrats Smear Josh Hawley for Revealing They Don’t Care if Supreme Justices Love Perverts and Hate the Constitution, The Federalist, Mar. 22, 20222, https://thefederalist.com/2022/03/22/democrats-smear-josh-hawley-for-revealing-they-dont-care-if-supreme-court-justices-love-perverts-and-hate-the-constitution.
[8] Charles M. Blow, Demanding That Ketanji Brown Jackson ‘Show Her Papers,’ N.Y. Times, Mar. 6, 2022, https://www.nytimes.com/2022/03/06/opinion/ketanji-jackson-tucker-carlson.html.
[9] Id.
[10] Andrew C. McCarthy, Senator Hawley’s Dising enuous Attack Against Judge Jackson’s Record on Child Pornography, National Review, Mar. 20, 2022, https://www.nationalreview.com/2022/03/senator-hawleys-disingenuous-attack-against-judge-jacksons-record-on-child-pornography.
[11] https://www.americanbar.org/content/dam/aba/administrative/government_affairs_office/aba-scfj-rating-letter-judge-ketanji-brown-jackson.pdf.
[12] Madison Alder, Jackson Gets ABA Backup as Panel Rebuts Soft-on-Crime Claims, Bloomberg Law, Mar. 24, 2022, https://news.bloomberglaw.com/us-law-week/jackson-not-soft-on-crime-aba-ratings-panel-tells-senate.
[13] Black Women and the Pay Gap, AAUW, https://www.aauw.org/resources/article/black-women-and-the-pay-gap/.
[14] Manu Raju, Jackson faces tight confirmation vote as Graham signals ‘no’ vote and GOP opposition stiffens, CNN, Mar. 23, 2022, https://www.cnn.com/2022/03/23/politics/gop-senators-opposing-kbj-confirmation/index.html.
[15] Sen. Ted Cruz presses Ketanji Brown Jackson on critical race theory, PBS, Mar. 22, 2022, https://www.pbs.org/newshour/politics/watch-sen-ted-cruz-presses-ketanji-jackson-brown-on-critical-race-theory.
[16] “I Cannot and Will Not Support Judge Jackson,” Mitch McConnell Press Release, Mar. 24, 2022, https://www.republicanleader.senate.gov/newsroom/remarks/i-cannot-and-will-not-support-judge-jackson-.
[17] Eugene Kiely and Saranac Hale Spencer, The Facts on Judge Jackson’s Sentencing in Child Porn Cases, FactCheck.org, Mar. 23, 2022, https://www.factcheck.org/2022/03/the-facts-on-judge-jacksons-sentencing-in-child-porn-cases.
[18] Aaron Morrison, “You Are Worthy”: Sen. Booker draws tears at Jackson hearing, AP News, Mar. 23, 2022, https://apnews.com/article/ketanji-brown-jackson-us-supreme-court-new-jersey-cory-booker-436fd1579fe534054be49666dc6bd61a.
