There are so many interesting firsts to be found on the shortlist of prospective Black women being vetted for the vacancy at the Supreme Court. We have candidates who don’t hail from the Harvard-Yale near lock on SCOTUS. We have what appears to be the most overt political patronage appointment that we have seen in decades. We have judges culled from state supreme courts, federal appeals courts, and federal district courts, who, by necessity, write differently for different audiences. Yet most of the narratives upon which we have settled continue to essentialize race and gender almost to the exclusion of everything else.
Republican Sen. Roger Wicker wants to howl about “affirmative action.” And Republican Sen. Ted Cruz wants to cry about “offensiveness.” That’s a shame. There’s a lot to be learned from so much of what is new about this slate of potential nominees. By lumping the whole class of women into a category that has somehow been deemed “lesser” to so many critics, we’ve both essentialized and lost all the really remarkable differences. We’ve also presumptively pitted them all against one another in ways that flatten their unique gifts and pathways.
Start with the bizarre fight over intelligence. It is a truth universally acknowledged that a white man in possession of a judgeship must be blindingly smart. We went back and looked at the coverage of the shortlisters contending for the Supreme Court seats vacated by, say, Justice Antonin Scalia in 2016 and Anthony Kennedy in 2018: Thomas Hardiman? Smart. Steven Colloton? Smart. Neil Gorsuch? Smart smart smart. Raymond Kethledge. Smart. Don Willett. Crazy smart. Oddly, in the roundups of their immense qualifications and writings, there is nary a hint of a doubt that each was immensely qualified and brilliant. You could praise Kethledge without anyone reading it to mean Colloton was a dummy. They weren’t pitted against one another as if the smartness of white men is in limited supply and if one had some the others somehow missed out.
Turn now to the as-yet-unnamed nominee to fill the seat vacated less than a week ago by Justice Stephen Breyer. As we noted last week, in part thanks to President Joe Biden’s promise to nominate a Black woman, the drumbeat of “not smart” had fired up within hours of shortlists being circulated. Conservative commentators were happy to consign literally everyone on the theoretical shortlist to the status of a “lesser Black woman” who raises urgent “quality concerns” even before they are formally announced. But it wasn’t just conservatives taking the bait. An unsourced claim in SCOTUSblog speculated that one potential candidate, Leondra Kruger, is “in the view of some—even more dynamic and intellectually stronger” than another potential candidate, Ketanji Brown Jackson. This summation quickly turned into conjecture about how “some observers” believe Kruger is intellectually superior—a whole new debate thoroughly removed from the substance of either woman’s work. Legal writing expert Ross Guberman, in a piece now taken down, ran samples of Jackson’s and Kruger’s writing through a program that uses A.I. to score judicial opinions out of 100 on factors, like whether the writing is “crisp and punchy.” Conservatives like Ed Whelan then seized on parts of Guberman’s analysis to cherry-pick language suggesting that Jackson is a terrible and tedious writer, relying on a program that he himself conceded no one should “treat as gospel.”
No matter that Jackson authored those opinions on the federal district court while Kruger wrote for a state Supreme Court—two very different tribunals with different purposes that often necessitate different writing styles. The knock on Jackson is that she explains too much, laboring to help counsel (and the public) understand complicated things like subject matter jurisdiction. During her eight years on the district court, Jackson also had to take a first crack at immensely complex questions of statutory interpretation, whereas appellate judges get the luxury of merely reviewing the lower court’s work.
Compare their approach to that of the Supreme Court’s conservative justices who routinely toss out a single paragraph of sparse reasoning on the shadow docket and call it a day. Meanwhile, a nominee like Jackson who bends over backward to show her work is critiqued for explaining too much. As Kimberly Atkins Stohr noted in the Boston Globe, Black women cannot just be “qualified” to excel in the law; they must be “super-qualified” throughout their careers.* And yet even those twice as qualified as their peers end up drawing twice as much criticism. Can’t find anything substantive on their record to criticize because it’s without scandal, partisanship, or overt lobbying? Don’t fret; you can always ask an A.I. algorithm to help sort the worthy from the strivers.
On the Amicus podcast this week former U.S. District Court Judge Nancy Gertner pointed out one reason why none of Biden’s shortlisters have especially flashy opinions to their name. Gertner described how young liberal jurists “audition” for higher court appointments: They try to diligently apply the law to the facts, and to be as cautious as possible. The judges who swing for the fences on the left are rarely elevated. By contrast, conservative judges auditioning for SCOTUS go all out proving their Federalist Society bona fides: Gorsuch used his judicial opinions on the appeals court to advertise himself as an enemy of the administrative state and diehard proponent of religious freedom; Kavanaugh flaunted his support for the unitary executive and hostility to reproductive rights to earn a spot on President Donald Trump’s shortlist; Amy Coney Barrett brandished her Second Amendment maximalism.
The conservative legal movement rewards this kind of flagrantly ideological auditioning. Republicans demand evidence that their justices will aggressively overturn precedent and laws that conflict with their political goals. (Hence Trump judges on the lower courts tripping over one another to deploy the most outrageous, vitriolic, and churlish rhetoric ever to appear in judicial writing.) Meanwhile, Democrats seek down-the-middle judges with uncontroversial records. It’s hard for left-leaning judges to write with much “punchiness” when they’re eager to stay in their lane. That asymmetry is replicated in the legal academy as well.
Court watchers on the left sometimes rejoice in devouring their own, as if criticizing liberal judges demonstrates their high standards and intellectual consistency. Surely we are exceptionally smart when we can pass quick judgment on the smarts of everyone else. That tendency at least partially explains the impoverished debates we are having about writing style, intelligence, and other qualifications that don’t come up when conservative white men occupy every spot on the list.
There’s a generation of extraordinary women of color finally being promoted to the bench. It’s unfortunate that we are missing the opportunity to learn about real women and real work in a quest to score cheap political points.
Correction, Feb. 4, 2022: This article misstated that a shortlist of candidates was intended to replace Justice Anthony Kennedy. Some were to replace Kennedy, and some were to replace Justice Antonin Scalia. The article also originally misspelled Kimberly Atkins Stohr’s first name.