143 Years.

March 22, 2022

[Audio version here]

          “Judge Ketanji Brown Jackson is the first Black woman to be nominated to serve on the United States Supreme Court.”

          That statement speaks volumes but leaves the greater part unsaid. The Supreme Court was established in 1789. During the first 76 years of the Court’s existence (through 1865), Blacks were an enslaved population, so service on the Supreme Court was impossible. In 1872, Charlotte Ray became the first Black woman admitted to practice law in the U.S. In 1879, Congress allowed women to practice in federal courts, and Belva Lockwood became the first woman admitted to practice before the U.S. Supreme Court. At that point, there was no legal impediment to appointing a Black woman to the Supreme Court. But it would be 143 years before Judge Ketanji Brown Jackson would be nominated by Joe Biden to serve as a Justice on the United States Supreme Court.

          That it took nearly a century-and-a-half to nominate a Black woman to serve on the Supreme Court is no accident. When President Lyndon Johnson nominated Constance Baker Motley as the first Black woman to serve in the federal judiciary, Senator Eastland of Mississippi attempted to block her nomination by claiming that she was a member of the Communist Party. The American Bar Association expressed doubts about Motley because she allegedly lacked trial experience “in the courts of New York”—a fact explained by her nationwide practice that included trials across the country in civil rights matters. Senator Robert Kennedy “worried that the appointment of Motley might be perceived as too “political” given her race and her background as a civil rights lawyer.” See Tomiko Brown-Nagin, Identity Matters: The Case of Judge Constance Baker Motley, 117 Columbia Law Review No. 7 (2017).

          After Judge Motley took the bench, she was frequently asked to recuse herself from cases involving discrimination claims based on sex or race. In a famous opinion, she rejected a request for recusal, writing

It is beyond dispute that for much of my legal career I worked on behalf of blacks who suffered race discrimination. I am a woman, and before being elevated to the bench, was a woman lawyer. However, these facts do not and could not, by themselves, rise to the level of “bias” within the meaning of relevant law. If background or sex or race of each judge were, by definition, sufficient grounds for removal, no judge on this court could hear this case.

          More than a half-century later, Judge Ketanji Brown Jackson is being attacked by the same unfounded questions about race, impartiality, and her prior practice of law that Southern segregationists used to attack Judge Constance Baker Motley. Some things never change. On the first day of Judge Jackson’s confirmation hearing, white nationalist  Josh Hawley did not allege that Jackson was a communist, but instead claimed that she was “soft on child-porn offenders”—a charge so patently absurd it brought groans from leading conservative outlets.  

          Moreover, according to media reports, Republicans will push Judge Jackson to recuse herself from a case involving affirmative action at Harvard because . . . well, because “she’s Black.” It is true that Judge Jackson serves on Harvard’s “Board of Overseers”, which is one of two boards responsible for governance at Harvard. But her term expires in early 2022. And as Judge Clarence Thomas has reminded us in recent days, even having a spouse involved in matters before the Court is not grounds for recusal. (The lack of an enforceable code of ethics for the Court is a scandal in itself.) As Judge Motley reasoned more than fifty years ago, if being a member of a “race” is disqualifying for Blacks in discrimination cases, then it is disqualifying for Whites, as well.

          In truth, the first day of Judge Jackson’s confirmation hearing was a triumph for her decency and grace. Republicans, on the other hand, spent the day making closing arguments in Brett Kavanaugh’s confirmation hearing—a moot point since Kavanaugh was confirmed. Dahlia Lithwick summarized the hearing aptly with her essay in Slate, Ketanji Brown Jackson rose above the muck on day one. But it was Jennifer Rubin who again hit the ball out of the park with her brilliant op-ed in The Washington Post, Ketanji Brown Jackson shows why she was nominated. Rubin’s closing paragraph says it all:

She is so manifestly qualified, so perfectly embodies the American dream and is so blessed with superior judicial temperament that it is obvious why Republicans are struggling. They just can’t seem to find a way to knock down a super-qualified, charming, humble and brilliant Black woman. It seems it does not occur to them that they should stop looking for the limelight (to further their presidential ambitions), ask short and reasonable questions and then vote to confirm on her qualifications. And that tells you everything you need to know about the decline of both the Senate and the Supreme Court.

          The coming days in Judge Jackson’s confirmation hearings will be bruising, but she will be confirmed. Indeed, Mitch McConnell is trying to rein in the uglier impulses of his colleagues on the Judiciary Committee before they further embarrass themselves in service of a lost cause. When Mitch McConnell gives up, it’s time to call for a vote and move on.

Putin’s war on the Ukrainian people.

          Putin’s war crimes continue unabated. His troops destroyed a shopping mall, kidnapped hundreds of civilians and “transferred” them to Russia, and shot at families with children fleeing the violence. President Biden was right to call Putin a “murderous thug” and a “war criminal. Those charges prompted Russia to threaten to “break relations” with America. Until Vladimir Putin is no longer the President of Russia, it is not clear that there is any value to having a working relationship with Putin. Indeed, the U.S. is warning on Monday evening that Russia is plotting cyber-attacks against U.S. targets—a move that would formalize a “break” in relations.

          The emerging consensus seems to be that Russia has abandoned its goal of regime change in Ukraine and will now settle for cleaving Crimea and Donbas from Ukraine. Whether Ukrainians will agree to territorial concessions seems in doubt, especially since a case can be made that Ukraine is “winning” the war unleashed by Putin. See Eliot Cohen in The Atlantic, Why Can’t the West Admit That Ukraine Is Winning? [For what it’s worth, many readers dislike Cohen, his politics, and his ability to analyze the status of a war.]

          On Monday, the Ukrainian Army pushed Russian troops out of a city “captured” by Russia. See Ukrainian National News, The Armed Forces of Ukraine liberate Makarov in the Kiev region. Russian companies specializing in tank repairs suspended operations due to supply shortages caused by Western sanctions. And some analysts speculate that Russia is using hypersonic missiles because it has exhausted its supply of precision guided tactical missiles.

          The worst news for Russia came when a Russian newspaper briefly published a death toll for Russian forces—and then abruptly removed the information after it began to attract attention on social media. See CNN, Russian tabloid posts — then removes — report on Defense Ministry’s count of Russian soldier deaths in Ukraine. Per CNN, the uncensored report stated that Russia “lost 9,861 people killed and 16,153 wounded.” Those numbers far exceed the conservative estimate by the U.S. but are generally consistent with estimates from Ukraine. More importantly, the level of casualties suffered by Russia, if true, is staggering. When added to POWs (572) and desertions (unknown), Russia may be experiencing a loss approaching 20% of the 150,000 soldiers it sent into Ukraine.  

          But even if Ukraine is “winning” the war in a military sense, the Ukrainian people are being used as hostages and human targets by Putin’s army. Putin’s decision to wage a war of attrition against the civilian population of Ukraine is a crime against humanity that should be prosecuted as a genocide in the International Criminal Court.

Domestic politics.

          We cannot rely on Republicans to defeat themselves. But it is helpful to remind ourselves of the challenges that our opponents face. Democrats have perfected the art of self-criticism and doubt to the point that it interferes with their ability to execute a winning strategy. Yes, Democrats face challenges. But if today’s news is any indication, Republicans face far greater challenges.

          For example, the leading GOP candidate in the primary to replace Senator Roy Blunt of Missouri is Eric Greitens. On Monday, the already troubled Greitens learned that his wife was alleging spousal and child abuse in their divorce proceeding. Republican leaders called for Greitens to drop out. He refused and suggested on Steve Bannon’s radio show that a news story would come out as early as Tuesday to “connect the dots directly to Mitch McConnell.” See Politico, Greitens allegations spark GOP fears of losing Missouri Senate seat.

          Speaking of Mitch McConnell, the Trump-endorsed Senate candidate in Alabama—Mo Brooks—put out an ad bashing Mitch McConnell. See Talking Points Memo, Mo Brooks Puts Out Ad Bashing McConnell As Trump Mulls Yanking Endorsement. In his ad, Brooks said that he will vote against McConnell as Senate majority leader for being a “weak-kneed, debt junkie, open-border RINO Republican and who, worse yet, sells out America for special interest group cash.” I hate to quibble, but Brooks left out “cold-hearted” and depraved.

          More generally, Republicans are challenging Trump-endorsed candidates in several races—a sure sign that Republicans believe that Trump’s influence is waning. Here’s the best part: There is no scenario in which Trump backs out gracefully. If the Republican establishment is going to challenge Trump’s ability to call the shots, Trump will inflict as much damage as possible on his way out the door. Good.

          So, let’s not attribute superpowers or monolithic unity to the GOP. They are a fractious, power-hungry clique whose members hate one another with a passion. They are tough opponents, and we should not underestimate them. But neither should we fear them. Rather, we should be using this time to out-organize, out-fundraise, and out-recruit them. We can do that!

Concluding Thoughts.

          We are fortunate to live in a time and place where someone with the talent, grace, and humanity of Ketanji Brown Jackson can be nominated to the Supreme Court. That makes me feel confident about the future of our nation. I hope it makes you feel that way, too.

          Talk to you tomorrow!