The More Some Things Change, the More Others Stay the Same

Ketanji Brown Jackson, Thurgood Marshall, and the Supremely Political Court

The treatment to which Republican members of the Senate Judiciary Committee subjected Ketanji Brown Jackson during her confirmation hearing was atrocious. The first ever African-American woman to be nominated to the Supreme Court, Brown Jackson faced GOP senators who were unabashedly insolent. Collectively, they ran her through a proverbial right-wing mill that included condemnations of Critical Race Theory, distortions of certain anti-racist children’s books, and allegations that she is “soft on crime.” She was also questioned about the role that race plays in her position as a federal judge, something no white male would ever be asked.

Republican Senators spent the largest portion of their allotted time attacking Jackson’s sentencing record on child pornography convictions alleging that her leniency was outside the boundaries of conventional jurisprudence. By imputation at the very least, right-wingers hold that she fails to take “sex offenders who prey on children” seriously. This is the sordid stuff of QAnon, and Republicans are up to their necks in it. As for Brown Jackson, she made it clear in her testimony that she is not convinced about the efficacy of child pornography sentencing guidelines. In fact, most of the prosecutors arguing such cases in her court room share her uncertainty as do a majority of district judges throughout the country. In other words, Judge Brown Jackson is in line with her judicial colleagues.

As everyone, including Republican senators, knows, Judge Jackson’s extensive and diverse legal background makes her eminently qualified for the position to which she has been nominated. She clerked for Supreme Court Justice Stephen Breyer whose seat on the bench she will fill. She served as a federal district court judge, a member of the U.S. Sentencing Commission, and currently serves as a federal appellate judge. Each of these positions required Senate approval. Her three previous confirmations were passed by way of “voice” votes which essentially meant that she faced no opposition and a bi-partisan “roll call” vote. Once seated on the Supreme Court Judge Jackson will become only the ninth justice to have worked as an attorney in private practice. Moreover, she will also be the first former public defender to sit on the highest court in the land.

Judge Jackson has written almost 600 opinions during her years on the federal bench and has had only a dozen of them overturned by appellate court review. Among the cases over which she presided were several involving Donald Trump while he was in the White House. In one instance, she rejected his claim to absolute executive immunity in ordering a top-level aide to defy a congressional subpoena. In another, Judge Jackson drew the ire of conservatives for deciding against the Trump Administration’s attempt to reduce collective bargaining protections for federal workers. She further antagonized the political right in an immigration opinion blocking a Trump policy intended to increase the number of asylum seekers who could face accelerated return to their place of origin. While her decisions in these cases lean to the left, her resume conveys an independent legal mind that may on occasion displease political progressives. For example, Brown Jackson presided over 22 cases in which Black plaintiffs sued their employers on grounds of racial discrimination. Of those, 22 were brought to the court by Black workers. In these cases, she found in favor of the companies 19 times.

As would be expected, liberals supported Brown Jackson’s selection and conservatives opposed it. In fact, the GOP began priming itself from the moment that Democratic presidential candidate Joe Biden announced that, if elected, he would fill a vacancy on the High Court with an African-American woman. Republicans responded that doing so would be tantamount to making an “affirmative action” appointment. Conservatives were conspicuously silent when both Reagan and Trump stated that they would nominate a woman to the bench. They were also quiet when Trump said that he would only consider choosing individuals committed to overturning Roe v Wade. Republican hypocrisy could not be clearer. The GOP seized upon Biden’s appointment of Brown Jackson because she is a Black woman.

Judge Jackson’s hearing played out like reality television. While it is common for senators on both sides of the aisle to perform for the cameras and their constituents back home, the behavior and comments of Republicans were especially ugly. They had indicated that they would be civil and respectful yet they proved to be neither. The so-called “culture warriors” simply could not help themselves. Following more than twenty hours of testimony, the committee members voted 11-11 along party lines. This necessitated that Democrats employ a “discharge motion” allowing them to send Judge Jackson’s nomination to the Senate floor without a committee report. The full body’s 53-47 vote to confirm included three Republicans. At long last, and more than fifty years after the first Black man rose to a seat on the Court, she will become its first African-American woman justice.


By the time Thurgood Marshall appeared before the Senate Judiciary Committee in 1967 as a nominee to the United States Supreme Court, he had won 29 of the 32 cases that he argued before that imposing body. While Brown v Board of Education (1954) striking down segregation in public education is the most famous example, other historically significant instances include Smith v Allright (1944) which prohibited states from conducting “white only” primary elections, Shelley v Kraemer (1948) which overturned race-based housing compacts, and Sweatt v Painter (1950) which declared that racially segregated post-graduate college and university programs were unconstitutional.

After more than two decades as a pioneering civil rights attorney, Marshall was appointed to the federal bench in 1961 by President John Kennedy. This made him only the second African-American federal appellate jurist in American history. Despite the racism that he faced, Marshall was confirmed by the full Senate although not before his nomination was held up by Southern segregationists for many months. Four years later, President Lyndon Johnson picked Marshall to serve as the first Black Solicitor General of the United States. Responsible for litigating cases on behalf of the federal government, Marshall won 14 of the 19 cases that he brought before the High Court.

When an opening on the Supreme Court appeared in 1967, President Johnson nominated Marshall to fill the vacancy. He would face the same Southern segregationists who had tried to scuttle his previous judicial appointment six years earlier. Often returned to office without electoral opposition, incumbent Dixiecrats relied upon seniority status in the chamber to secure and hold onto powerful committee chair positions. Furthermore, their animosity for Marshall was deep-seeded because of the role he had played in Brown. If the segregationists were on the wrong side of history, they had no intention of simply walking away from the table.

James Eastland (D-MS) was the judiciary committee chair for Marshall’s appellate court appointment as well as for his Supreme Court nomination. Eastland, who served in that capacity for a longer period than any chairperson in history, ranked among the most racist of legislators. During the 1961 proceedings, however, he allegedly told Attorney General Robert Kennedy that he was willing to horse trade. If JFK would concede to Eastland a favored appointee, then he would give the president “his nigger.” Moreover, during Marshall’s Supreme Court confirmation hearings six years later, Eastland shamelessly had the nerve to ask if he was biased against white southerners.

Other notable instances of hostility towards Marshall during the hearings came from John McClellan (D-AK), Sam Ervin (D-NC), and Strom Thurmond (R-SC), the latter of whom had switched his party affiliation from Democrat to Republican in 1964. For his part, McClellan focused on increasing crime rates and social unrest. Attempting to incite the nominee, he called Marshall “soft on crime” which remains a commonly used and racially coded phrase to this day. The Arkansas senator then turned and hammered away at Miranda v Arizona (1966), asserting that the ruling was anti-law enforcement. Marshall refused, however, to engage this line of questioning, continually stating that he could not and would not speak about court cases and legal issues that were recently decided, currently in the docket pipeline, or might be conceivably argued before the court at a later date.

Then it was Ervin’s turn. From the North Carolinian’s perspective, the idea of “civil rights” was simply a way for the federal government to take from whites and give to Blacks. In other words, the federal government was overstepping its legitimate jurisdictional boundaries. Ervin championed the Senate filibuster as a means to derail 1960s civil rights legislation. In fact, he employed this procedural tactic more than any other senator in history. He finished his questioning with an example of what is now called “originalism.” Senator Ervin asked Marshall if he believed that the Supreme Court’s role was to establish the framers’ intentions. The nominee agreed so long as the Constitution was understood to be a “living document.”

Last but not least came Strom Thurmond. The South Carolina senator subjected Marshall to a series of arcane questions, more than sixty in all. Among other things, Thurmond asked the nominee if he knew who drafted the 13th Amendment. He also asked Marshall to name the members of the committee that formulated the 14th Amendment and he questioned whether the nominee could cite a legal basis for the Civil Rights Act of 1866. While Marshall answered some of Thurmond’s questions, he responded to a number of them with “I don’t know” or “I don’t remember.” Thurmond’s obscure queries about the post-Civil War constitutional amendments were aimed at making Marshall appear uneducated. This display of bigotry carried over to debate on the Senate floor where Thurmond called Marshall “stupid.”

Notwithstanding Marshall’s experience, Supreme Court confirmation hearings were not always the nasty fisticuffs that they are today. The process was business like and procedures were routine. Few nominees appeared before the judiciary committee prior to the post-Brown era. In fact, regular hearings were themselves a product of this same period as Southern segregationists adopted a strategy of pressing nominees “up close and personal” on civil rights matters. Given that Marshall was the first African-American Supreme Court nominee in the nation’s history, it is not surprising that his confirmation process deviated from the norm. Prior to his nomination, for example, judiciary committee hearings generally lasted for a couple of days, several hours each day. In Marshall’s case, the committee met for five days, five hours each day, over a period of two weeks, the longest sessions up to that point in U.S. history.

While it was common practice for committee staff to prepare questions for a nominee, this typically generated only a relative few of them. However, thanks to Dixiecrats, Marshall faced hundreds of questions. Moreover, adding further insult to injury, Chairman Eastland held up the committee’s 11-5 recommendation to confirm for several weeks after the hearings were over. Comprising a “gang of four” Eastland, McClellan, Ervin, and Thurmond were joined in the nay column by George Smathers (D-FL). In the final analysis, Southern segregationists failed to mount a filibuster by two votes with twenty of them casting no vote at all. Eventually, Marshall was duly confirmed by a vote of 69-11 in the full Senate. Upon assuming his seat on the bench, he served for twenty-four years as an Associate Justice. Thurgood Marshall retired from the United States Supreme Court in 1991 and passed away two years later.


Despite taking place more than five decades apart, the roads that Marshall and Brown Jackson took to the Supreme Court were similar. For one thing, both of their careers included representing criminal defendants, a rare attribute among Supreme Court justices. Secondly, racial animus was paramount in both confirmation hearings. On one hand, Marshall faced off against Southern segregationists who opposed civil rights and were Democrats in name only. On the other hand, Brown Jackson was confronted by right wing Republicans whose intent is to “roll back” gains made towards racial and gender equality. In a moment reminiscent of Marshall being quizzed about civil rights, Judge Brown Jackson was brazenly asked to define the word “woman” and was mocked when she said that she was a judge not a biologist.

Both nominees were eventually confirmed, but each had to contend with a race-baiting and demeaning state of affairs. Though clearly frustrated at times by the tenor of the proceedings, Judge Jackson kept her cool by relying upon an approach to answering questions that limits the scope of what nominees will and will not address. While a nominee’s refusal to engage certain lines of inquiry is commonplace today, Marshall employed this tactic at his 1967 hearing. In fact, he ranks among the least forthcoming of Supreme Court nominees as a result of his refusal to play the racist Q&A hand that he was dealt.

More than 90% of Supreme Court justices in American history have been white men. In contrast, there have been two Black male justices, four white women justices, and one Latina justice. Today, gender, ethnic, and racial diversity have come to be seen as integral to the mechanisms of the Court and with the addition of Brown Jackson, there will be four women sitting on the bench. However, the Court that Brown Jackson will serve on is far-removed from the one upon which Marshall sat. His ascension to the High Court kept alive a five-justice liberal majority that voted as a bloc almost all of the time. He was in a position to shape not only the Court’s agenda but its outcomes as well. However, the progressive wing with which Marshall was so strongly identified declined over time. The resulting shift in the balance of power means Justice Brown Jackson will begin her service on a Supreme Court comprised of a super-majority of six right-wing justices. Combined with her status as the most junior member of the Court, her ability to have an impact early on will be limited. Nevertheless, she is only fifty-one years of age and could conceivably serve on the Court for decades.

Michael Hoover is a retired political science professor (Seminole State College in Central Florida). His writing has appeared in academic as well as non-academic publications. The former includes New Political Science and Race, Gender & Class. The latter includes Against the Current, MROnline, and Synthesis/Regeneration. He is also the co-author of City on Fire: Hong Kong Cinema (Verso) Read other articles by Michael.