Law & Courts

Ketanji Brown Jackson Proved Lightning Rod for Republicans on Education Issues

By Mark Walsh — April 06, 2022 | Updated: April 07, 2022 4 min read
Supreme Court nominee Ketanji Brown Jackson arrives to meet with Sen. Bill Hagerty, R-Tenn., in his office on Capitol Hill, Tuesday, March 29, 2022, in Washington.
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Ketanji Brown Jackson, newly confirmed to take a seat on the U.S. Supreme Court, drew fire from Republicans in the lead-up to the vote over perceived connections to hot-button education issues such as critical race theory, transgender student rights, and affirmative action in admissions.

Both in written questions to Jackson and in their comments on the Senate floor and in committee this week, GOP members returned to themes they raised during three days of committee questioning last month.

Jackson used the written questions as an opportunity to push back on some of those criticisms and to once again stress it would be inappropriate for her to comment on matters that might come before her as a Supreme Court justice.

President Joe Biden nominated Jackson to succeed retiring Justice Stephen G. Breyer, who won’t step down until the court’s term ends early this summer. She will be the first Black woman to join the court. Three Republicans—Sens. Susan Collins of Maine, Lisa Murkowski of Alaska, and Mitt Romney of Utah—joined all 50 Democrats Thursday in voting for her, with a final tally of 53-47.

In the last days before the vote, Democrats continued to praise Jackson, including as a potential role model. Sen. Debbie Stabenow, D-Mich., said on the Senate floor Wednesday that “millions of young Black girls, and their moms, and their grandmas are looking at Judge Jackson with … pride and admiration. ... And how many of these young girls will see this incredibly accomplished woman and say, ‘Hey, that could be me.’ I hope they all do.”

Republicans ask more questions, including about the definition of a ‘woman’

Sen. Marsha Blackburn, R-Tenn., however, continued her attacks on Jackson over transgender rights, saying it “wasn’t a trick question” when she asked the nominee at her confirmation hearing last month for the definition of a “woman.”

“It is something that everybody learns in grade school science class,” Blackburn said on April 4 during the Judiciary Committee’s voting session. “The fact that she couldn’t or wouldn’t answer that question speaks volumes. It tells me that Judge Jackson is beholden to the radical left that is teaching our children that they can choose their own sex.”

Blackburn added that, “Parents live in fear of the progressive ideology that is being pushed in some of our schools.”

Jackson was asked again about defining a “woman” in some of the hundreds of follow-up questions submitted to her by Republican members of the committee. And on those follow-ups, she pushed back more forcefully than she had in the committee hearing.

“Respectfully, I am not aware that any prior Supreme Court nominee has been asked to define what a woman is or answer related questions, for example, about biological differences between men and women,” Jackson wrote in a reply to a question from Sen. Mike Lee, R-Utah. “And I am aware that the reason these questions are being posed to me is because there are active conversations happening in the public sphere—among policymakers and others—regarding LGBTQ individuals, especially transgender individuals, and their participation in various activities.”

Jackson added that it would be inappropriate for her to offer an opinion in the abstract on “legal issues regarding who is protected under the Constitution and our civil rights laws, or the scope of that protection.”

Nuance on critical race theory and other issues

In her written answers, Jackson offered some nuance on other education-related issues raised during her hearing. She stressed that critical race theory “has not come up in my work as a judge, and it is not a theory I have studied or relied on—nor would it if I were confirmed to the Supreme Court.”

Asked by Sen. Josh Hawley, R-Mo., whether she sat on the board of any primary or secondary school that teaches critical race theory or critical race studies, Jackson said no.

“It is my understanding that critical race theory or critical race studies are academic subjects taught in some law schools,” Jackson wrote. “To my knowledge, I have not served on the board of any primary or secondary school that teaches ‘critical race theory or critical races studies.’”

Sen. Ted Cruz, R-Texas, had asserted during the hearing that a Washington private school on which Jackson does serve as a member teaches an anti-racism curriculum and makes books on critical race theory available to its students. He did not revisit the issue in his written questions or in his speech on the Senate floor Wednesday. But in explaining his opposition to her, he referred to Jackson’s refusal to answer the question about defining a woman, saying it was a simple matter of common sense.

“Judge Jackson is such a fellow traveler with the radical left that she cannot follow common sense,” Cruz said.

Jackson, in her written responses, also stated that the Supreme Court’s landmark 1954 decision in Brown v. Board of Education of Topeka, which outlawed racial segregation in public schools, was correctly decided. That was not going out on any kind of a limb, but some recent judicial nominees have refused or been hesitant to answer questions about Brown, largely out of concern about getting drawn into discussions of other high court precedents.

Jackson said Brown was one of a handful of U.S. Supreme Court decisions that qualified as exceptions “to the general principle that a judge should not comment on the court’s precedents.”

“The underlying premise of the Brown decision—i.e., that ‘separate but equal is inherently unequal’—is beyond dispute,” Jackson wrote in response to a question from Cruz. (Jackson was the first Supreme Court nominee in many years not to be asked about Brown during in-person testimony before the Judiciary Committee.)

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