In a bid to rally opposition to Judge Ketanji Brown Jackson’s nomination to the Supreme Court, Republicans are on a mission to cast her as a staunch advocate of critical race theory.
The problem for those Republican opponents is that little evidence has emerged to support the idea, and that Jackson has stated repeatedly that she doesn't draw from critical race theory in her jurisprudence. Nonetheless they've deliberately distorted and exaggerated any possible affiliation she has with the legal school of thought and prioritized it as their case against her. The agenda illustrates a strikingly transparent bit of racist fear-mongering designed to whip up anxiety against the first Black woman nominated to the Supreme Court.
It’s clear that Republicans aren’t engaged in a serious dialogue with Jackson about the field of critical race theory.
On Monday, the first day of Jackson’s Senate confirmation hearing, Sen. Marsha Blackburn, R-Tenn., told Jackson that she had “made clear that you believe judges must consider critical race theory when deciding criminal defendants.”
That’s false. As The Associated Press noted in a fact-check, Blackburn twisted Jackson’s words:
Blackburn appeared to be referring to a speech in which Jackson described how she encouraged students to study federal sentencing policy as an academic area implicating many topics.
“Sentencing is just plain interesting on an intellectual level, in part because it melds together myriad types of law — criminal law, of course, but also administrative law, constitutional law, critical race theory, negotiations, and to some extent, even contracts,” Jackson said in her speech. “And if that’s not enough to prove to them that sentencing is a subject ... worth studying, I point out that sentencing policy implicates and intersects with various other intellectual disciplines as well, including philosophy, psychology, history, statistics, economics, and politics.”
The context there is Jackson is talking about how she explains to students the various kinds of intellectual paradigms that sentencing policy intersects with and how those paradigms can bear upon how a judge thinks about sentencing. That makes sense, because critical race theory originated as a school of legal thought that analyzes how racism is embedded in American institutions, and sentencing is a policy domain that critical race theory might be used to reflect upon.
But it’s one thing to acknowledge the reality that critical race theory is part of the scholarly conversation about how many think about sentencing. It’s another thing entirely to say a judge “must consider” it in sentencing.
That nuance didn’t prevent Blackburn from asking Jackson, “Is it your personal hidden agenda to incorporate critical race theory into our legal system?”
Nor did Jackson’s nuance prevent the Republican National Committee from repeatedly tweeting Tuesday that Jackson’s confirmation is to be understood primarily as a vehicle for critical race theory.
But the link the RNC tweeted out offers no evidence that Jackson is a critical race theory evangelist. It mainly uses vague associations with critical race theory scholars without offering any proof that it forms her legal worldview. (In one particularly slippery example, Jackson is described as citing the "insights" of the widow of an acclaimed scholar of critical race theory, but the "insights" are referring to the widow's own scholarship on female civil rights leaders, not critical race theory.)
Later Tuesday, Sen. Ted Cruz, R-Texas, showed blown-up pages of antiracist literature taught to children at a private school where Jackson serves on the board and asked whether she agreed "with this book that’s being taught to kids that babies are racist.”
Jackson explained that she didn’t know whether critical race theory was being taught at the school because the board doesn’t control the curriculum. Even so, she responded to Cruz’s absurd question: “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 their victims, that they are oppressors. I don’t believe in any of that.”
Cruz asked Jackson multiple times about critical race theory, asking her to define it and whether she agreed with his cartoonish definitions of the field, again inspired by her quote from her speech discussing critical race theory as a field intersecting with sentencing policy.
“It doesn’t come up in my work as a judge,” she said. “It’s never something that I studied or relied on, and it wouldn’t be something I would rely on if I was on the Supreme Court.”
But even if Jackson were a huge fan of critical race theory and there were a huge trail of paperwork indicating that she has been, that shouldn’t be a problem. It would enrich the Supreme Court to have more justices who think rigorously about institutionalized racism in this country and how it intersects with various aspects of our legal life and the criminal justice system.
It speaks volumes about the modern Republican Party that it considers the very existence of a school of legal thought that claims that we should think about institutionalized racism to be a disqualifying trait of a justice. It also says a great deal about the state of the party that that’s the centerpiece of its argument against her nomination.
It’s clear that Republicans aren’t engaged in a serious dialogue with Jackson about the field of critical race theory. Instead they view the issue as an opportunity to generate controversy and whip up opposition to her nomination among the Republican base. The GOP is fixating on this one issue when there are so many other legal issues that Jackson has discernible opinions about and could be pressed on. It all seems to suggest that some of the basis for the focus on the issue is her race.