The New Yorker Radio Hour - Anita Hill and Jane Mayer on Ketanji Brown Jackson, and the State of the Supreme Court

Episode Date: April 8, 2022

Ketanji Brown Jackson has been voted in as a Supreme Court Justice—the first Black woman to serve in that role. But, to reach this milestone, Jackson has faced enormous hurdles at every turn, including confirmation hearings that featured blatant political grandstanding and barely disguised race-baiting. Nominations have become so partisan that, on both the left and the right, the Court itself is commonly viewed as merely a tool of the party that picked its members, and several polls report a decline in public confidence in the Court. “The real political end” of the attacks on Brown Jackson, Hill believes, “is to denigrate her personally, honestly, but also to really reduce the validity of any opinions that she ultimately writes. Even though . . . many of her opinions will be dissenting opinions, dissenting opinions can carry a lot of weight.” Meanwhile, Justice Clarence Thomas’s decision not to recuse himself from cases related to the January 6th insurrection, even after it came to light that his wife Ginni Thomas actively sought to influence Trump Administration officials to try to overturn the Presidential election, also undercuts the court’s impartiality. It seems that the reputation and independence of the Court is in serious trouble.  Anita Hill, a professor of social policy, law, and women’s studies at Brandeis University, spoke with David Remnick about the Ketanji Brown Jackson hearings, along with the staff writer Jane Mayer, who is reporting on the Ginni Thomas controversy. (Hill, who testified in the 1991 Thomas nomination hearings, has declined to speak about his stance on recusal.) New Yorker Radio Hour listeners, we want to hear from you.  We have a few questions about the show and how you listen to it. The survey takes about twenty minutes, and your feedback will help us make our podcast better.  Take the survey here.

This is The New Yorker Radio Hour, a co-production of WNYC Studios and The New Yorker. Welcome to The New Yorker Radio Hour. I'm David Remnick. The question occurs on the nomination of Katanji Brown Jackson of the District of Columbia to be an associate justice of the Supreme Court of the United States. On this vote, the A's are 53, the Nays are 47, and this nomination is confirmed. Katanchi Brown-Jackson won the support of several Republicans in the Senate to finalize her nomination as a Supreme Court justice.

But the confirmation hearings along the way featured political grandstanding of the most blatant and even racist kind. Jane Mayer has been writing about the Supreme Court for years for the New Yorker and we're joined as well by Anita Hill, who's a professor of social policy and law at Brandeis University. Anita and Jane, thanks so much for joining us. Now, the nomination process for Katanji Brown-Jackson, although successful in the end, was grueling and at times extremely ugly. Anita, you faced the Senate Judiciary Committee in your time during a very different nominating process.

What was going through your mind as you watch those hearings? Well, first, just let me make very clear. I was a witness in a confirmation hearing. Katanji Brown Jackson is the nominee. I wasn't surprised that there was an attack on her. I was shocked at the level or the depths that they would go to to discredit her. So I think we need to think about the cumulative impact that it has on her as the first African-American woman to be nominated for the Supreme Court position.

But also the effect that it will have on her and her colleagues, Justice Sotomayor and Justice Kagan, as they begin leadership of what will be very likely a minority group on the Supreme Court. there's an even larger impact on the court itself, the credibility of the court, and the process for selecting judges was on trial. And I think damage was done to all of those. Jane, you're a close watcher of the Senate. How is this nomination compared in tone and substance to the hearings prior to it, the hearings for Justice Kavanaugh and Connie Barrett? Well, I mean, I found it just strikingly and depressingly familiar, particularly to the confirmation hearings of Clarence Thomas

and the way that Anita Hill was treated. I have to say that is the echo that I kept hearing in this. And to some extent, Christine Blasey Ford, and as Anita Hill saying, these were witnesses, but what the salient thing to me, was just the kind of, just demeaning and, and in fact, also something, an interesting theme to me was that there was a kind of a weird sexualization in all of these attacks where the women were made to look sort of outside of the norms. I mean, in particular, I thought it was interesting that they went after Justice Jackson on her handling of sexual offenders and particularly sort of child. pornography cases and made her look permissive in some way, as if she was sort of somehow outside of the norms. And so Anita Hill, way back in the day, was described as an erratomaniac and described as

sort of nutty and slutty and all these awful things that were, they were white men who were casting women as being sort of somehow dangerous in the sexual area. I found that, you know, just depressingly familiar. Yeah, and I would definitely echo all of what you've said. The sexualization part, it is a way of so denigrating women. And it was all done, I said, from this associational baggage that they were sort of piling on her. she was associated with pedophilia because they disagreed with a sentence that she gave to one individual. And not only does that sexualize her, it feeds into these Q&on conspiracy theories about Democrats and pedophilia that have been swirling around.

around, I guess at least now for the past four or five years. And so it was easier for the sexualization to stick because she is a black woman. And that has been the history of the treatment of black women over sexualizing us for political reasons. and in this case we see it at its highest level in our government, or maybe at its lowest level, but it's coming out of our Senate, and it is reflecting on our highest court.

Well, we see a moment, it is an accumulation of moments of Senator Cotton, Senator Hawley, Senator Cruz, Blackburn, and the accumulation of things, are, seem to be what we would have thought were fringe attacks. All of these accumulate to form a certain image and sort toward what political end for these senators? Well, I think the real political end, one is to denigrate her personally, honestly, but also to really reduce the validity of any opinions that she ultimately writes. Even though I understand that there will be, many of her opinions will be dissenting opinions. Descenting opinions can carry a lot of weight,

especially in future cases. Descenting opinions can help shape reasoning even of the majority opinions because they can push back on some ideas that the majority might have. So I am absolutely sure that they are trying to neutralize her power and importance. But I also think that there is a strategy, and I think this has been announced by Lindsay Graham. There's a strategy that they want to shape the court in their own making. Lindsey Graham has suggested that in the future, when the Republicans control the Senate Judiciary Committee, that even though the law allows for, the Constitution allows for the president to choose a justice for the Supreme Court, he's already signaled that they won't be allowed to even have a confirmation hearing. And so it's not far-fetched to say that, one, they may even be signaling to potential judges who are moderate or liberal that they need not even apply. In fact, I've actually talked to people who said that they would not want to have to go through a process like the one that they have seen in the past couple of weeks.

So you two, Jane, see this as a systemic chilling. effect on not only the justice system, but on the future of nominations that even come before the Senate for confirmation? I do. And I think the signal that it sent loud and clear, it's basically that from now on, there will be no Supreme Court justice who is confirmed unless the president and has the majority in the Senate. How do you both look at this in historical terms? As you well know, as you well know, the argument is that the Republican argument is you guys started it with Robert Bork, that the highly politicized confirmation process began with the confirmation hearings for Robert Bork

and Ted Kennedy's accusations leveled at him and so on. Do you see that as legitimate, Anita Hill? Oh, absolutely not. I mean, when you look back at the Bork hearings, you will see that there were Republicans who joined the Democrats. voting against his nomination. It wasn't as though that there was a democratic sort of attack on an individual that, you know, no one on the Republican side agreed with. The decision not to confirm Judge Bork was bipartisan. But secondly, the attack was really on the.

legitimate differences in constitutional interpretation. And so I don't see it as the same. But even if you say there was an attack on Robert Bork, it did not reach the depths that the attacks on Judge Jackson have reached. And I would just want to be clear, if we do not understand how racism and sexism played into what became a political campaign against her. And the racism played into these tropes and myths about blacks being soft on crime. It played into this idea that any effort to address racism is itself racist. their attack was built on the lie that she had somehow been a part of teaching critical race theory in an elementary school. And the evidence that Ted Cruz presented was a picture book,

a child's picture book. Right. You know, it, and I, you know, it sort of just shows the absurdity of his positioning, how far that they were willing to go. I had not a picture book waived, brandished, but in the Thomas hearing, Orrin Hatch, you know, waved a copy of the exorcist around. Again, these kinds of tactics and approaches, none of that happened in the Bork hearing. None of that happened in the Bork hearing, but it did happen. when the people that they were confronting were two black women. Anita Hill, thank you so much for joining us. Thank you so much for having me today.

This is the New Yorker Radio Hour. We'll continue with staff writer Jane Mayer in just a moment. This is the New Yorker Radio Hour, and we're talking about the state of the Supreme Court. Now, Jane, we just talk with Anita Hill, and I want to talk now about Justice Clarence Thomas. And I should probably say outwardly that Anita Hill prefers not to talk about Thomas after those nomination hearings so many years ago.

But you've been covering the huge controversy over the political activism of Ginny Thomas, who is encouraging Trump's chief of staff, Mark Meadows, to help overturn the 2020 elections. Give us some sense, first of all, how Ginny Thomas became such a political force. Well, she's always been a political activist, even from the time that Clarence Thomas first married her, she was working for the Chamber of Commerce and working against equal pay for women. So she's been involved on the right in politics for a very long time. But during the Trump administration, her role really grew. And it was behind the scenes for the most part.

But she was trying to get meetings inside the White House, trying to meet with Trump, which she managed to do at some points, carrying lists of people that she thought he should fire. And she was becoming, you know, someone who was recycling, some of the most fringe theories in America, including sort of Q&on theories. And what surfaced when we finally got to see her text messages to former chief of staff to Trump, Mark Meadows, were just how far out her views were and just how deeply, deeply involved she was in that effort to try to overturn the 2020 election. Okay, okay, but let me stop you there.

What you hear in Washington in some quarters says, well, you know, this city is filled with married couple, with both have political careers. Aren't people allowed in a marriage to have their own separate politics, views, no matter what you think of those views? Yeah. And, of course, they are. And the critics of the critics here have sort of said, oh, this is sexist to go after Jenny Thomas, which is really a, you know, a red herring.

Because nobody's saying she can't have her own views. What they're saying is a Supreme Court justice, like any other judge, is that they're bound by there's a specific law that says that no judge, no matter which court they sit on, no, it's a federal law. It says they cannot sit on a case in which their spouse has an interest in the outcome. And what we learned was from all of this was that Justice Thomas actually sat on a case that involved the January 6 investigations. And we now know his wife was part of the the effort to sort of overturn the election that is under those investigations. And so he was basically sitting on a case that involves his wife. And there are many other examples which we did,

you know, I sort of tried to lay out in the New Yorker story of issues in which Ginny Thomas has a stake. And in one case, at least, she had a financial stake. And basically, the issue is whether he should recuse. It's not an issue of whether she should have her own opinions. And does he decide recusal on his own or can say, Justice Roberts say, hey, you better recuse yourself on this? How is recusal decided? I mean, it's kind of amazing in this day and age, but the justices completely decide on their own, and there's no enforcement method over them. The chief justice could certainly suggest that Clarence Thomas recuse, but it hasn't been done. It's really not the sort of norm and the chief justice, despite the higher title, doesn't really have any specific

authority over any of the other justices recuse. So there's really no recourse, is there, other than the pressure of politics or embarrassment? Well, I mean, under the Constitution, the only recourse is impeaching a Supreme Court justice, and it's only been tried once, and it was in 1804 and failed. There is actually a lot of legislation that has, you know, has been suggested. Right now, there's a bill called the, I think it's the 21st century courts act, but it only has democratic sponsors in the Senate and the House to try to bring in some enforcement method of ethics on the Supreme Court. Jane Mayor, thanks so much. Great to be with you. Jane Mayor is a staff writer, and we spoke also with Anita Hill,

who's a professor of social policy, law, and women's studies at Brandeis University. I'm David Remnick, and that's the show for today. Thank you so much for listening. Have a great week. The New Yorker Radio Hour is a co-production of WNYC Studios and The New Yorker. Our theme music was composed and performed by Merrill Garbus of Tune Arts, with additional music by Alexis Quadrado. This episode was produced by Alex Barron, Ave Carrillo,

Brita Green, Callalia, David Krasnow, Goffin and Putubuele, Louis Mitchell, Michelle Moses, and Stephen Valentino. with help from Alison McAdam and Meng Faye Chen and guidance from Emily Boutin. The New Yorker Radio Hour is supported in part by the Cherina Endowment Fund.