Law & Courts

Ketanji Brown Jackson Is Put on Republican Hot-Seat Over Gender, Critical Race Theory

By Mark Walsh — March 23, 2022 6 min read
Supreme Court nominee Ketanji Brown Jackson speaks before the Senate Judiciary Committee as she attends the third day of her confirmation hearing, on Capitol Hill, in Washington, Wednesday, March 23, 2022.
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Using the prism of education, the Senate Judiciary Committee had two distinct ways of looking at U.S. Supreme Court nominee Ketanji Brown Jackson over several days of confirmation hearing testimony.

To Democratic senators, who are clearly in her corner, Jackson is an inspiration to young people by virtue of coming from parents who grew up attending segregated schools and became successful career educators, her stellar academic record, and her potential to make history as the first Black woman on the high court, where she would succeed the retiring Justice Stephen G. Breyer.

To at least a handful of the 11 Republicans on the committee, Jackson is someone who embraces liberal orthodoxies such as racial awareness, serves on the board of a private school that teaches critical race theory starting in the earliest grades, and bodes ominously for traditional gender roles by refusing to recognize physical differences between men and women.

Those were themes both sides returned to repeatedly during the three days Jackson spent at the witness table, including more than 20 hours of questioning over two of those days.

Sen. Ted Cruz brings books and blowups of book pages

One of the more charged exchanges came when Sen. Ted Cruz, R-Texas, raised the issue of critical race theory with Jackson.

“Critical race theory frames all of society as a fundamental and intractable battle between the races,” Cruz said, focusing his line of questioning on the initial day of questioning around the view by conservative critics that the analysis developed in law schools for examination of racism in society had seeped into discussions of race in all levels of education.

Cruz first asked her whether critical race theory was taught in K-12 schools.

“I don’t know, I don’t think so,” Jackson said. “I believe it’s an academic theory that’s at the law school level.”

Cruz then raised Jackson’s membership on the board of trustees of Georgetown Day School, a private school in Washington, D.C., and whether the school had embraced critical race theory as part of its core commitment to social justice. The recent debate over critical race theory has largely played out in public schools more than private schools.

Jackson noted that the private school’s embrace of social justice stems from its founding in 1945 as a racially integrated school at a time when Washington’s public schools remained segregated by law. It is a history well-known in the nation’s capital, and many affluent progressives send their children to the school. (One of the two daughters of Jackson and her husband, Patrick, still attends the school.)

Cruz sought to impeach Jackson’s testimony, in the courtroom-surprise sense.

“When you just testified a minute ago that you didn’t know if critical race theory was taught in K-12, I will confess I find that statement a little hard to reconcile with the public record,” Cruz said. “If you look at the Georgetown Day School’s curriculum, it is filled and overflowing with critical race theory.”

Sen. Ted Cruz, R-Texas, holds up a book as he questions Supreme Court nominee Judge Ketanji Brown Jackson during her confirmation hearing before the Senate Judiciary Committee Tuesday, March 22, 2022, on Capitol Hill in Washington.

He held up books that he said were “either assigned or recommended” by the school, including one titled Critical Race Theory: An Introduction and a children’s book called Antiracist Baby, by Ibram X. Kendi, which Cruz said declares that babies are taught to be either racist or antiracist.

When Cruz asked Jackson about that children’s book, she let out a sigh of exasperation.

“Senator, I do not believe that any child should be made to feel as though they are racist, or as though they are not valued,” she said.

Democrats see Jackson as a source of inspiration

Sen. Cory Booker, D-N.J., came to Jackson’s defense by referring to the recent efforts to remove books about race and other topics viewed as objectionable by some on the right.

“We’re entering an age that is surprising to me in American society, when lots of books are being banned,” Booker said. But as a board member of the private school, Jackson had no role in choosing the curriculum, Booker said, and she quickly agreed with him.

Booker, like many of the other Democrats on the committee, repeatedly praised Jackson for her historic nomination.

“Not only are your parents and children proud, but so are your ancestors,” he said.

And Sen. Mazie Hirono, D-Hawaii, told Jackson that as a graduate of a public high school, she would be a welcome addition to the high court.

“Of the nine sitting justices of the Supreme Court, only three were graduates of our public school system,” Hirono said. “Public high schools educate people from all backgrounds, and most people go to public schools.”

(Those three are Breyer, Samuel A. Alito Jr., and Elena Kagan, so the net number would not change.)

Attention to whether the nominee can define a ‘woman’

But Republicans were not finished with raising hot-button issues that have arisen in education.

Sen. Marsha Blackburn, R-Tenn., took up critical race theory late Tuesday evening.

“We know that CRT is being pushed in our K-12 schools,” she said. Parents across the country are worried about critical race theory and “progressive indoctrination,” Blackburn said.

She also brought up Georgetown Day School, asking whether Jackson supported what Blackburn characterized as a progressive approach on gender identity.

“I found it astounding that it teaches kindergartners ... 5-year-old children ... they teach them that they can choose their gender,” Blackburn said.

Jackson said she would not comment “about what schools teach.”

Blackburn also raised a U.S. Supreme Court decision on gender equity that discussed the physical differences between men and women.

“Can you provide a definition for the word ‘woman’?” Blackburn said.

“No, I can’t,” Jackson said. “Not in this context. I’m not a biologist.”

Blackburn seemed further astounded.

“You think the meaning of the word ‘woman’ is so controversial that you can’t give me a definition?” the senator said. “The fact that you cannot give me a straight answer about something as fundamental as what a woman is underscores the dangers of the kind of progressive education that we are hearing about.”

On Wednesday, Cruz picked up on Blackburn’s line of questioning, asking how Jackson could know in a case alleging gender discrimination whether the litigant had legal standing as a woman.

Jackson seemed to have given some further thought on how to respond.

“Senator, I know I am a woman, and Senator Blackburn is a woman, and [so is] the woman I admire most in the world [who] is in the room today, my mother.”

In the end, the country learned little about how Jackson would rule on any particular education law issue, including those raised by Republicans.

But Jackson did make a bit of news when Cruz asked whether, if confirmed, she would recuse herself from the major affirmative action case the Supreme Court is slated to take up next fall. The case involves a challenge to the consideration of race in admissions at Harvard University and the University of North Carolina. Jackson is a member of Harvard’s Board of Overseers, with a term that ends this spring. But previously, she had not addressed whether she would sit out the case.

On Wednesday, in response to Cruz’s question, she matter-of-factly said that she would recuse.

“Senator, that is my plan,” she said.

The Judiciary Committee will hear from outside panels of witnesses on Thursday.

A version of this article appeared in the April 06, 2022 edition of Education Week as Ketanji Brown Jackson Is Put on Republican Hot-Seat Over Gender, Critical Race Theory

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