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Supreme Court Nominee’s Race and Gender Loom Large Over Senate Hearings

Columns appearing on the service and this webpage represent the views of the authors, not of The University of Texas at Austin.

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Should the race and/or gender of an individual be considered for the nomination of an individual to the Supreme Court? For many people the answer is an emphatic no, but it does. Last month, Sen. Ted Cruz characterized President Joe Biden’s pledge to nominate the Supreme Court’s first Black woman as discriminatory and offensive. The hypocrisy of Cruz’s statement is that both Donald Trump and Ronald Regan pledged to nominate a woman to the Supreme Court.

Nevertheless, few issues ignite the passions of Americans more than the perception of a person being the recipient of an opportunity (job, college admissions, promotion) for reasons unrelated to their qualifications or merit. It is the specter of a Black woman being nominated to the highest court in the land for the sole purpose that she is a Black woman that looms over the confirmation hearings of Judge Ketanji Brown Jackson.

Goals of representation are often mistranslated to mean that an unqualified person from an underrepresented group is going to be taking a position from a presumably more qualified person. Out of a total of 115 justices, 110 have been men (which includes two men of color), and five have been women (four white women and one Latina). In terms of ethnicity, 112 justices were white while only three were people of color.

According to a recent Pew poll, the majority of Republicans (54%) and Democrats (61%) believe Jackson is as qualified as other candidates. However, approximately a third of Republicans believe Jackson is less qualified than recent candidates, compared with approximately a third of Democrats who believe Jackson is more qualified than recent nominees.

While questions about Jackson’s qualifications are par for the course in the rough-and-tumble politics of Supreme Court nominations, it is undeniable that her race and gender are the factors that have drawn extra scrutiny to her nomination.

Contrary to sentiments which suggest that acknowledging how a judge’s background might affect that person’s decisions is disqualifying and “against the American ideal and oath that a judge takes to be fair to every party,” people of color and women have long understood and acknowledged the importance of their lived experiences in how they view the world. Impartiality requires an understanding of people’s backgrounds and lived experiences.

Like many high-achieving Black women and women of color, Jackson has had to fight racist and sexist stereotypes about her qualifications. Sen. Roger Wicker said that Biden’s pick would be a beneficiary of an affirmative action quota, while Georgetown Law administrator Ilya Shapiro declared that Biden’s pick would be a “lesser Black woman.”

However, her credentials are impeccable. She attended Harvard University where she graduated magna cum laude, and then attended Harvard Law School where she served as editor of the Harvard Law Review and graduated cum laude. Her sterling academic credentials have made it virtually impossible for her critics to openly question her intellectual prowess to join the Supreme Court. Instead, concerns about her qualifications have been couched in the language of “judicial temperament,” having a limited judicial record, and being an “extremist” who is soft on crime and child pornography offenders.

While defending her credentials, Jackson is also probably trying to prevent perceptions of the “angry Black woman” stereotype that many Black women must contend with in the workplace. One study found that when Black women in particular expressed anger, others judged their anger as a dispositional characteristic (i.e., an inherent quality) instead of based on the current situation. These judgments of anger also led study participants to rate the leadership capability of Black women as worse than that of other women.

In the face of racist and sexist comments, Jackson has not wavered from her belief in the greatness of America. Her confirmation will get America one step closer to the belief that America is “the greatest beacon of hope and democracy the world has ever known.”

Kevin Cokley is the chair of the Department of Educational Psychology and a professor of African and African diaspora studies at The University of Texas at Austin.

Germine Awad is an associate professor of educational psychology at The University of Texas at Austin.

A version of this op-ed appeared in the San Antonio Express News.

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