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What’s on the line as Judge Ketanji Brown Jackson begins the Supreme Court confirmation process? Anita Hill and journalist and social critic Marc Lamont Hill discuss the importance of this historic nomination and what it means for representation, justice and equality in the United States.
In this series-opening episode, you’ll hear what the appointment of a Black woman to the Supreme Court means for America, and what Getting Even means to Anita Hill.
Anita Hill
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I'm Anita Hill. This is Getting Even, my podcast about equality and what it takes to get there. On this show, I'll be speaking with trailblazers, people who are improving our imperfect world, people who took risk and broke the rules. But I have to start off this series by addressing the historic moment we're in right now. As a lawyer and a former witness at a Supreme Court confirmation hearing, I've been laser focused on President Biden's recent nomination. On February 25th, I watched anxiously as he stood at the podium with Vice President Kamala Harris on one side and on the other, Judge Ketanji Brown Jackson. The announcement that was weeks, actually centuries, in the making finally became real.
It's a first for our country. It speaks to so much of my work and what I'm talking about on this podcast. The whole country will be watching as Judge Ketanji Brown Jackson goes before the Senate Judiciary Committee. I'm very familiar with that committee. They're the same body that I stood in front of in 1991 when I testified about sexual harassment I experienced working at the Equal Employment Opportunity Commission under Clarence Thomas.
My name is Anita F. Hill and I'm a professor of law at the University of Oklahoma.
Back then, the committee was made up entirely of White men. And the chair in 1991 was Senator Joe Biden, the same Joe Biden who's making history today as President.
Joe Biden
My nominee for the United States Supreme Court is Judge Ketanji Jackson. Who will bring extraordinary qualifications, deep experience and intellect and a rigorous judicial record to the court.
Anita Hill
I wanted to have a conversation with someone who I know appreciates the significance of this moment. So I called up Marc Lamont Hill. He's a journalist, social critic and professor. And no, we're not related. We spoke a few days before Judge Jackson was announced as a nominee, which is why you won't hear us refer to her in our conversation, but the larger conversation remains unchanged. Marc Lamont Hill and I set out to discuss what this moment means for justice, what it means for a representation and the benefits to everyone of this historic nomination.
Marc Lamont Hill
Professor Anita Hill, it is so good to see you. It is so good to talk to you. This is a big deal then. You're certainly no stranger to big deals around Supreme Court nomination, so I know you understand how important this is.
Anita Hill
Oh, absolutely, and I'm looking forward to the really positive things that can come out of this.
Marc Lamont Hill
1991 was a moment where the Senate Judiciary Committee had an opportunity to listen to the voice of a credible Black woman and not only did they not do it, but their attitude seemed to reflect an inability to recognize a Black woman as intellectual and capable and balanced and fair, et cetera. And so I'm wondering if they can't even do that at the level of a witness if they're able to think about a Black woman jurist. And now it's been 30 years. How do you think about the ability of the Senate Judiciary Committee to even assess the qualification of a Black woman for this job?
Anita Hill
Well, fortunately the Senate Judiciary Committee has changed, so it is much more diverse than it was 30 years ago. I think that there is so much to be gained from this nomination and the public discussion about our sense of justice in this country and the importance of the Supreme Court in representing our sense of justice.
Marc Lamont Hill
The first place where the conversation about justice emerged was when President Biden said that he was going to honor his campaign trail commitment to choosing a Black woman. And this is something that I think was left out of the public conversation to some extent, is that the decision to consciously select a Black woman is not the first moment where there was a conscious intent to choose people. The hundreds of years where the courts were all White male didn't happen by happenstance. It wasn't a meritocracy that somehow being interrupted. They were very intentionally not choosing Jewish people at one point, very intentionally not choosing Black people and then somehow the subtext keeps emerging and that's one around qualification.
Anita Hill
Yeah, I think, again, that's a part of our history that we want to pretend doesn't exist. Those judges are there. They have been there. Constance Baker Motley who was on the Second Circuit, Juanita Kidd Stout, who was one of the first Black women appointed to a state supreme court back in the eighties, Pauli Murray, who wrote Richard Nixon and laid out her resume and all her credentials for being on the Supreme Court and told him that he should nominate her. And she was right.
Marc Lamont Hill
Of course.
Anita Hill
She was a brilliant legal theorist, but we have so erased that history. It is though we're invisible.
Marc Lamont Hill
In other words, Joe Biden isn't the first person to identify qualified Black women, and this isn't the first generation of qualified Black women by any stretch. There have been women for decades, and certainly if not centuries, who have been equally qualified and deserved a place on the court. They simply didn't have the opportunity. I think that's an important piece to add, particularly against the backdrop of this public outcry that Joe Biden is suddenly going rogue in being selective or intentional about who he's selecting for the Supreme Court as if, again, for centuries there hadn't been qualified Black women who were intentionally left off of the list.
Anita Hill
My worst fear in this conversation is that we will resort to racist tropes, sexist tropes, and we are going to miss this opportunity to ask some really important questions today.
Marc Lamont Hill
Well, what are those questions?
Anita Hill
Well, I think we should be asking who's missing from positions of power and influence in our political systems? And that includes our judiciary. What do we do to step out of that? How do we imagine equality in the future? We have been operating for a while from what I think is a 1964 version of equality, and it has worked very well, but it has not finished the job of creating equality for everyone.
Marc Lamont Hill
Well, what is a 1964... For context, right, because there were people who say, "Well, that sounds like a good idea. We didn't have access to public accommodations. We didn't have access to civil rights. We needed to be in places that wouldn't let us in." What's wrong with the 1964 vision or what's limiting about it?
Anita Hill
There's nothing wrong with it. In fact, I've benefited from it. So I would not say that there is anything wrong with it, but what we know is that we still have huge disparities on many, many fronts. So we need to be thinking about if our goal is equality, what more can we do? We have been having challenges over the last few years, things like the Me Too movement and like Black Lives Matter. And I think at the core of those movements is a cry for new ways of thinking about justice and equality.
And so far we have people who are buying into the messages of those movements, but we haven't had the leadership that follows and we haven't had any changes in the structures that are limiting our advances toward this new way of thinking about equality inclusively and broadly as fundamental to our democracy.
When we come back, Marc Lamont Hill and I get into the question of objectivity in judging and whether or not it's possible. You are listening to Getting Even, my podcast about equality and what it takes to get there. I'm Anita Hill. A few days before Biden announced Ketanji Brown Jackson as his pick for our next Supreme Court justice, I called up Marc Lamont Hill. We spoke about what it means to the country to have a Black woman nominated to the highest court.
Marc Lamont Hill
One of the things that will definitely come out of the conversation is whether the person can be impartial and rather than simply proving that Black women have the same capacity to be impartial as White men or to make the case that everybody's impartial on some level, is this an opportunity or should we take this as an opportunity, to reshape the language around impartiality and objectivity rather than to try and wedge ourselves into the framework that always has the world looking at us like we're short?
Anita Hill
This is just like the questions about competence. They only come when you have a person of color and they come up for the purpose, not of finding the right person for the bench, but they come up to discredit thinking and ideas in resistance to the status quo. And so I think we are in a moment where we know that if we are going to move us, as a country, to expand our thinking about the role that the law can play in creating a more just and equal society, then we have got to resist those old ways of eliminating people by simply saying they're not qualified or they can't be objective, assuming that there is one standard or qualification or one standard of objectivity.
There's an interesting story about Constance Baker Motley who... I mean she may have been considered, but she was certainly never nominated to be on the Supreme Court, but she was a judge in a case. It was an employment discrimination case. And what the council defending against the lawsuit asked was that Constance Baker Motley recuse herself, and this was in the papers that were submitted to the court, because her race and her gender would make her suspect and unable to be objective in this case.
I love her response because she said, "If that is the standard we begin to hold, then we must recognize that everybody on the bench is incapable of being objective because everybody on the bench has both the quality of a race and a gender." But we only see that when we see people of color. Of course, she did not recuse herself but I think she made the best argument. That is our best response. When we start talking about the objectivity of Black women, then we have to start talking about the objectivity of all of the White male judges and the Black male judge. Is anybody ever objective?
Marc Lamont Hill
You're pointing to something very interesting that's beyond partisan politics, and that is a question of political imagination, of judicial imagination, the ability to take different approaches to the law, different traditions, different beliefs, different worldviews, and to incorporate them into one's practice. These are things that aren't limited to the Democrats or the Republicans. This is about a worldview that cuts across them both. And so diversifying the Supreme Court, on some level, allows us to push back against that trend, and it doesn't seem like many of us don't even realize that that's a trend to push back against.
Anita Hill
One of the things that Ruth Bader Ginsburg did was that she very often called out her colleagues for not understanding the experiences of women. We talk about the judicial imagination. Her imagination for what justice is quite different from her colleagues, and she was not afraid to say so. And this nomination and the way that it was announced was intentional. It challenged to the status quo, an opportunity for us to say we need a judiciary that reflects the population that is going to come before, that reflects ideas, new ideas, based on different lived experiences in terms of deliberations and decision making, and even their new ideas or new experiences about the path to becoming a judge and what judging is and how it happens and the value that can be brought in where new ideas about how to define justice are allowed to be considered.
Marc Lamont Hill
It's an intersection, again, of gender and race, right? Because when Trump said, "I'm electing a woman", no one thought that he meant anything other than a White woman. When Reagan made the same determination, no one thought that he was considering anything other than a White woman. And when Joe Biden says, "Well, I'm going to choose a Black woman", I think it's that intersection that was just untenable for so many people.
Anita Hill
And the wonderful thing about the moment is that we not only have a chance to look at intersectional bias against women of color, in this case Black women, we have a chance now to look at intersectional value. The value that having lived experiences as both a female and a Black person is really something that can contribute to the thinking and that goes into judging and that goes into our definitions of justice today. And if we don't see that as this opportunity, if the Senate Judiciary Committee isn't asking questions about those two things, then there's a missed opportunity for the entire American public.
Marc Lamont Hill
And the problem is they don't know what to ask. They don't even have the self-awareness to ask those questions, and they didn't understand the thing that you're speaking to now, which is it's not just a nice act of liberal generosity to diversify the court, but that there's some inherent value to diversity, that there's something that it's an added value to say this court should look different.
Anita Hill
It offers differences in terms of what the judges talk about in their deliberations. What is the conversation like in their deliberations? And those conversations are driven by experiences. Even as I say that our thinking is not unilateral, I know very few Black women who cannot tell you how race and gender, separately and combined, have impacted their life experiences. But we know that diversity in those kinds of conversations can lead for a richer understanding of what the law is and how it impacts people.
And I'll go back to Sandra Day O'Connor who talked about how Justice Marshall influenced her thinking about the law, and maybe that's how we got affirmative action because she wrote the opinion and maybe she was influenced by listening to Justice Marshall. But if you don't have someone bringing that to the conversation, not only do you not have a chance to change the outcome, you don't have a chance to change the reasoning and judging is more than about outcomes. It's about the reasoning. It's about the explanations for the law and telling the people why decisions are made in the way that they are, and I think those need to be filled with experiences from multiple perspectives.
Marc Lamont Hill
I have to ask you, once the smoke clears and a Black woman has been confirmed to the US Supreme Court, how will you, given everything you've been through, everything you've witnessed, your entire set of experiences, how will you feel?
Anita Hill
I will be absolutely elated, absolutely elated. Now, I typically think of myself as a glass half full, but one of the things that I want to be cautious about is that we don't start seeing this as, "Well we have one, that's it. That's all we're ever.. The Black woman speech"-
Marc Lamont Hill
Check the box.
Anita Hill
"Check the box." This is not about checking the box. This is about a judiciary that represents our country and the best in our country and the values of equal protection under the law and justice being blind. And so I will relish in that moment and then I will hopefully suggest some other ways that we can get some of the work done that needs to be done.
Marc Lamont Hill
I like that attitude, and that's what it means to be Black in this country in so many ways. We celebrate the victories that we struggle for, but we understand that the work is undone, it's unfinished. We have to keep fighting.
Anita Hill
That's right. Absolutely.
Marc Lamont Hill
Professor Hill, it was a pleasure, pleasure, pleasure talking to you. Thank you so much for letting me hang out with you.
Anita Hill
Oh, listen, this was great. I couldn't have asked for a better partner to have this conversation.
Of course, Marc Lamont Hill and I don't know what the outcome of this historic confirmation hearing will be, but we have hopes about how the process will go and hopes that we can learn from the mistakes made throughout the history of the Senate and the court. We can't shy away from difficult questions about what equality under the law means, what it really looks like, and more importantly, how diversity on our courts could change people's lives and our country.
On the next episode of Getting Even, you're going to hear new revelations about a familiar piece of history, one you heard Marc and I refer to in our conversation, the 1991 Supreme Court nomination hearing for Clarence Thomas.
Speaker 5
It was not unusual for Clarence to act that way with people and especially Black women at the commission. Like I said before, he was like a fox in a henhouse, and I wanted to make the committee aware of the fact that you were not lying to them or making up statements, that this in fact is what was happening at the EEOC.
Anita Hill
Later in the season, I'll be speaking with W. Kamau Bell, Kimberly Crenshaw, Nicole Hannah Jones, Misty Copeland, and many others about the realities that keep us up at night and what it takes to get even. What we're looking for is outcomes. We want results, measurable outcomes, in the way that people live every day.
Getting Even is a production of Pushkin Industries and is written and hosted by me, Anita Hill. It is produced by Mo LaBorde and Brittani Brown. Our editor is Sarah Kramer. Our engineer is Amanda Kay Wang, and our showrunner is Sachar Mathias. Luis Guerra composed original music for the show. Special thanks to Vicki Merrick for her help with this episode. Our executive producers are Mia Lobel and Leital Molad. Our director of Development is Justine Lang. At Pushkin, thanks to Heather Fain, Carly Migliori, Jason Gambrell, Julia Barton, John Schnars and Jacob Weisberg.
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