Carolyn Kaster/AP Photo
Sen. Ted Cruz (R-TX) during the Supreme Court nomination hearings for Judge Ketanji Brown Jackson, March 22, 2022, at the U.S. Capitol.
Supreme Court confirmation hearings have long since descended into partisan, chest-thumping endurance contests. They demonstrate little more than one individual’s ability to survive gotcha questions and petty asides, devised less for the average viewer than for partisan town halls and campaign commercial sound bites for the assembled senators.
Judge Ketanji Brown Jackson has demonstrated commendable restraint this week, most especially during the blatant provocations of Ted Cruz’s critical race theory (CRT) minstrel show. Withstanding the attacks on a once obscure legal dictum that has been transformed by Republicans into a bone-chilling threat to the republic’s children in a venue where it has no relevance requires reservoirs of intestinal fortitude.
All in all, it was one of the more embarrassing displays of congressional performance art in recent years. Cruz, like Jackson an alumnus of Harvard Law, spent a portion of his 30 minutes during Tuesday’s question period showing colorful posters of babies, one white and one brown, contemplating race, pictures reproduced from the children’s book Antiracist Baby by Boston University historian Ibram X. Kendi. The book appears on the curriculum used by the Georgetown Day School, a private, pre-K-12 school in Washington where Jackson sits on the board of trustees. Cruz went on to rail about four more race-related books (a total of three by Kendi). He also castigated The 1619 Project, the controversial American history tome by Nikole Hannah-Jones and New York Times writers.
Sen. Marsha Blackburn (R-TN) used her half hour on Tuesday to double down on the fictitious claim that American public schools teach CRT and to insist on the right of parents to weigh in on what is taught in schools. (Vocal parents have long weighed in on lesson content, but the vast majority leave teaching and curriculum matters to the experts, especially since academic and mental-health aftereffects of months of remote learning now dominate most conversations about education.)
Contrary to what Cruz, Blackburn, and other far-right conservatives insist, CRT is not taught in public schools. Simply put, critical race theory is a legal framework that asserts that racism is structural, permeating American society, its institutions, and especially its jurisprudence. Kimberlé Williams Crenshaw, a UCLA School of Law and Columbia Law School professor, one of the framework’s formulators, views CRT as “a way of seeing, attending to, accounting for, tracing and analyzing the ways that race is produced.”
Some Republicans never let facts get in the way of a good show.
But some Republicans never let facts get in the way of a good show. Cruz’s real complaint is his and his supporters’ presumed discomfort about lessons that tackle the more raw chapters of American history: the dislocation and massacres of indigenous peoples, slavery, Jim Crow, and their ongoing effects, all implemented and perpetuated by white people. For evidence of those effects, look no further than the fact that it was only three weeks ago that Congress made lynching a federal crime. Acknowledging and reckoning with the realities of privilege—the numerous social, economic, and political advantages that come with being at the apex of America’s racial caste system—produce fits of apoplexy among many whites. Cruz, Blackburn, and their ilk believe they’ve found the perfect base-riling tools for a time in which hoary racist constructs—which never really died away—are new again.
The air may yet seep out of this anti-history backlash. Earlier this month, the Virginia Association of School Superintendents, which represents the state’s 133 education leaders, called on Republican Gov. Glenn Youngkin to get rid of a tip line for parents to report “divisive content.” A Jewish lawmaker’s remarks about the Holocaust prompted the Wyoming House to reject an anti-history bill, while candidates railing against CRT flopped in Vermont local elections.
Of course, the spectacle of Cruz picking up and putting down posters of babies and helping to sell more copies of some best-selling books have nothing to do with the nomination of a Supreme Court justice. Jackson’s response returned the hearing to the actual matters at hand. “I have not reviewed any of those books, any of those ideas, they don’t come up in my work as a judge which I’m respectfully here to address,” she said.
Cruz moved on. Wednesday’s hearing featured Cruz repeatedly interrupting Jackson when she declined to answer his questions about child pornography cases that she believed she had already responded to on Tuesday. He then sparred with Sen. Dick Durbin (D-IL), the committee chairman, about the interruptions and, apparently, got caught scrolling through his Twitter mentions after the scene.
Scott Wiener, a California state senator, had this to say about Cruz on Twitter: “Ketanji Brown Jackson was in my law school class. Everyone thought she was a nice & brilliant person. Ted Cruz was a year ahead of us in law school. Everyone thought he was a major jackass …”
The Senate is obligated to provide its advice and consent on Supreme Court nominees. But more often than not, Judiciary Committee hearings devolve into several days of relentless partisan attacks that fail to grapple with 21st-century jurisprudence. Using them to throw slabs of red meat into the maws of culture warriors is simply more evidence of rot in the process of selecting justices that does little to restore faith in the Court—or the Senate.
