Last week, the Senate Judiciary Committee held confirmation hearings that are expected to lead to the first African American female U.S. Supreme Court Justice: Judge Ketanji Brown Jackson. Of the 115 individuals who have served on the nation’s highest court in its 233-year history, only five have been female (Sandra Day O’Connor, Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan and Amy Coney Barrett) and two African American (Thurgood Marshall and Clarence Thomas).
Republican Senate Judiciary Committee members questioned Jackson aggressively. In some ways, these questions resembled those that were asked of a woman that Jackson has cited as a role model: the late attorney, civil rights icon, and judge Constance Baker Motley. As happened in Baker Motley’s hearings, senators used racially coded language to attack her as unfit, implying that Black women are radical extremists, without having to use explicitly racist language to do so.
The lack of Black female judges and intersectional discrimination
As legal scholar Kimberle Crenshaw noted in her well-known theory of intersectionality, the discrimination that Black women endure based on their race, gender, and sometimes class adds up to more than just the sum of those parts. That’s visible in the U.S. federal court system, where Black women are far more underrepresented than one might guess.
Although Black women made up 12.9 percent of American women in 2019, or roughly 6.5 percent of the U.S. population, currently only 3 percent of sitting federal judges are Black women. The majority of U.S. circuit and district courts include no women of color. In the lower courts, only 1.8 percent of federal judges who have served throughout American history have been Black women, for a total of 70 out of 3,840. Of the 809 appellate judges to have ever served, 13 have been Black women, making up 1.6 percent. Fully, 80 percent of active judges are White.
Over the last 50 years, Republican presidents have been less likely than Democratic ones to nominate African American women — with the exception of George W. Bush, who appointed eight. Those include Donald Trump, who nominated two; George H.W. Bush, two; Ronald Reagan, one; Gerald Ford, none; and Richard M. Nixon, none. Contrast that with Democratic presidents Joe Biden, who in just over 15 months has appointed 11; Barack Obama, 26; Bill Clinton, 15; and Jimmy Carter, seven.
Why did Sen. Graham grill Ketanji Brown Jackson about her religious faith?
Who was Judge Baker Motley?
Constance Baker Motley was one of the leading architects of several Southern civil rights protests as an associate counsel for NAACP from 1945 until she became a Manhattan borough president in 1965, including writing the initial complaint that led to the landmark 1954 decision Brown v. Board of Education. She was also the first Black woman to argue a case before the Supreme Court, winning all 10 of those she argued.
President Lyndon B. Johnson nominated her for a seat on the U.S. District Court for the Southern District of New York in 1966; she was confirmed later that year. She was the district’s chief judge from 1982 to 1986 and died in 2005.
Why do so few Black women serve in high-level federal posts?
Coded language in 1966 and 2022
Political scientists find that both Republicans and Democrats have successfully used racially coded language for their political gain, avoiding blatant racial appeals and instead using such covert appeals so that they can’t be directly accused of racism. Perhaps not surprisingly, in their confirmation hearings, both Baker Motley and Jackson endured intersectional bias that can be detected in racial code words some senators used.
As political scientist Tomiko Brown-Nagin’s book revealed, Sen. James Eastland (D-Miss.), an avid segregationist and then-chair of the Senate Judiciary Committee, delayed Baker-Motley’s nomination for seven months. She and Eastland had battled before her nomination because of her pivotal role in Brown and her later efforts to integrate the University of Mississippi. Eastland had opposed both because he believed, as he put it, that the “future greatness of America depends upon racial purity and the maintenance of Anglo-Saxon institutions.”
During the hearings, Eastland did not mention Baker-Motley’s race or gender. Instead, he accused her of being a “communist,” saying he based that on an accusation from a “very high class lady.” At the time, civil rights advocates were often called communists. Many of Eastland’s questions focused on this allegation by one unnamed witness. Although no evidence existed of her having a Communist affiliation, Eastland and Sen. John L. McClellan (D-Ark.) voted against her — but the other 10 committee members approved her nomination, leading her to become the first Black female federal court judge.
Why aren’t there more Black female judges on the federal bench?
In 2022, several observers argue that senators once again used racially coded language to question a Black woman poised to become another historic first. Sen. Ted Cruz (R-Tex.) asked Jackson if she believed babies were racist and suggested that she supported “critical race theory” — a theory initially developed as a legal framework and later to analyze the impact of racism in American institutions more generally. Some states have used the term to ban schools from teaching about racism. Sen. Josh Hawley (R-Mo.) tweeted that Jackson “has a pattern of letting child porn offenders off the hook for their appalling crimes,” something several other Republican senators implied as well. In racially coded language, they implied that she has been soft on crime throughout her career. In reality, she imposed sentences on child porn offenders that were similar to those imposed by other judges in such cases. And several senators asked whether she would recuse herself from an upcoming Harvard affirmative action case — ostensibly because she has been on Harvard’s Board of Overseers, but in doing so, drawing coded attention to her race. She did say she would recuse herself.
The 1966 and 2022 Senate Judiciary Committee’s attacks on Constance Baker Motley and Ketanji Brown Jackson ontained coded nods to racism as a way to paint both women as extremists. These tactics delayed Judge Baker Motley’s confirmation for months. We will see whether and how they affect the Jackson confirmation.
Correction:
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Sharon Wright Austin is Professor of Political Science at the University of Florida.
N’Jhari Jackson and Sarah Louis, undergraduates at the University of Florida, assisted with research for this article.