Jurisprudence

How Fringe Conspiracy Theories Invaded the Ketanji Brown Jackson Hearings

Ketanji Brown Jackson, head bowed, as she sits at a table with a microphone on it.
Judge Ketanji Brown Jackson listens as Sen. Ted Cruz speaks during her confirmation hearing before the Senate Judiciary Committee on Wednesday. Anna Moneymaker/Getty Images

On a recent episode of Amicus, Dahlia Lithwick reflected on last week’s Judge Ketanji Brown Jackson confirmation hearings by talking with Stanford Law professor Nate Persily about how the hearings intersected with the bigger misinformation ecosystem. They spoke about how a debunked lie that Jackson was soft on child predators morphed from fringe theory to the Republican party line in under a week, and what that says about the pervasive distrust of the institutions of democracy. A portion of their conversation, which has been condensed and edited for clarity, has been transcribed below.

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Dahlia Lithwick: Let’s talk, if we may, about misinformation. Listen, I don’t work in your lane and I don’t understand these information ecosystems the way you do. But what I saw play out within the span of less than a week was a really dumb trial balloon floated by Sen. Josh Hawley in some tweets last Thursday. And by the end of Wednesday, six days later, it was the party line.

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As it was being debunked in real time, by the way, in every mainstream media source, including the National Review online, it was expanding and growing and growing and expanding. The more we talked about it, the more it grew. It just really became clear to me—and, Nate, please tell me I’m wrong—that it doesn’t matter because Sens. Ted Cruz and Josh Hawley are narrow-casting to their people, to One American Network and to their Twitter mentions, and that you and I are operating in an ecosystem that is utterly immaterial to what they were trying to do. In that sense, I guess, they did what they were trying to do.

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Nate Persily: Well, look, it matters in no small measure because it took up an enormous amount of time. That’s why I think the speech by Sen. Cory Booker to at least refocus us on the joy of this hearing was so important, as well as Sen. Alex Padilla’s comments that really led Judge Jackson eventually to show that side of her, to show the struggle and also how much these hearing had worn on her.

Let’s be clear, if it weren’t these questions, it would’ve been something else. So it’s not about anything that she did in these cases or some particular decision. Think about the other trial balloons. This could have been all about critical race theory. It could have been about the abortion decisions or her briefs. That could have been the dominant point. But the thing about child pornography is it’s not just the third rail, say, in these hearings. When you talk about the internet ecosystem, it has a privileged role. This is the worst thing, the worst topic you can bring up. So if you can cleave some personality, some nominee to that topic, you have succeeded. We know this, of course, from the famous Pizzagate controversy with Hillary Clinton, which led to real violence as a result of misinformation. You see it in the QAnon echo chambers as well. So this is part of a strategy to try to adjoin her to that most incendiary topic.

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I was really struck on Wednesday when they brought in an expert, who’s supposed to be the child sex offender expert, who’s supposed to shore up all of these completely debunked conspiracy theories, and the expert herself declines to talk about Judge Jackson, admits she’s never read her opinions or her law review article. In my mind, when I think about this as a disinformation or misinformation problem, I’m like, well, boom, even your expert didn’t corroborate what you were saying and, in fact, said something actually supporting Judge Jackson had been saying about how the internet has changed the ways we think about porn. I’m clearly naïve, right? It doesn’t matter that the expert that they bring in from Operation Underground Railroad did nothing to help them. The mere fact that there was an expert there is enough.

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Remember that very few people are watching all of the hearings. The hearings are opportunities for sound bites. So the question is: Will there be something that happens in the hearing that then will reverberate or be in the information ecosystem or on cable news? Having expert advice is only relevant in so far as it shores up the narrative in a significant way so that then it can be amplified by the other thought leaders.

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How easy is it really to debunk any of this stuff when it’s not really drawing on evidence, it’s appealing to emotion and psychological anxiety? So you could have all the expert testimony that you want, and it’s not going to replace the yelling that was coming from the podium. It’s just about trying to give more air to that issue as opposed to others.

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That leads me to one other question that I was very aware of. I was very struck by this locution of “Do your own research. People are asking.” Josh Hawley starts by saying, “People just really are asking about these two soft sentences” in some child porn cases. There’s a way in which it encourages folks to do their own research, right? It’s saying, “If you won’t release these confidential presentencing reports, you’re part of the conspiracy to hide child porn enablers.” It makes everybody who isn’t a party to this do-your-own-research game part of the conspiracy. This is how anti-vaxxers spread misinformation. It’s how Stop the Steal happens.

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So I want you to tell me how unique this is to the internet age and how unique it is to this QAnon zeitgeist of “Everyone’s lying to you. Everyone’s in on it.” If we can find a scintilla of something, it doesn’t matter what’s there. What matters is we have now persuaded people that they are the experts and that their research is dispositive. So is this how conspiracies always spread, or is this some part of this larger mistrust of institutions and truth?

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I want to start with the last phrase, because that’s the fertile ground into which these seeds are planted, which is that we’re living in an age of pervasive distrust. There’s a chicken and egg problem here of whether the internet has caused it. My view is that the loss of trust in institutions generally—government in particular but institutions generally, so the medical establishment, universities, corporations, banks—there’s been a long-term erosion in that trust. Why that is is complicated. It’s not unique to the United States. We’re seeing this around the world.

So start with that as the baseline. Then the question is: What strategies then undercut even further legitimate sources of authority and credibility? Right now, part of the problem is there’s no institution or single person who has credibility across the political spectrum. We’re very far away from the days when Walter Cronkite could end every broadcast with “That’s just the way it is,” because right now no one trusts anyone to say what it is at this point.

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There’s this loss of authority. To some extent, that is an internet story. It’s also a cable news story, of course. There’s a feedback loop here where the internet sometimes sets the agenda for cable news. Cable news then sometimes sets the agenda for that internet, which is to say social media and more grassroots-y commentary.

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Kate Starbird of the University of Washington has talked about “participatory disinformation,” and that’s really what we’re seeing here as well. You need to only look at the slogan for Russia Today, which is, “Question more.” Whether it’s in the anti-vax context, whether it’s with respect to the QAnon conspiracy theory, election fraud, or any number of other areas where you’re trying to get some source of authority, some elite opinion on this to then make its way into the mass public, the answer is, “Look, do your own research, because these people have a hidden agenda.” It is extremely difficult to counteract that.

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So you know where this is going, which is: What do we do? I always end up quoting my younger son, when the Nazis were marching in Charlottesville, who, at the age of 12, posited, “You ignore them, you lose. You engage with them, you lose.” It’s so clear to me that this hearing was a matter of you pick your way through one of two really terrible outcomes: You either engage, debunk, and in some ways give credibility to a bunch of debunked garbage, or you ignore it and let it flourish in fertile ground. Now you’re going to explain to me why that is way too simplistic and there is a way to prevail over this hellish double bind.

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What you say is true. That doesn’t mean all hope is lost. There are strategies and ways to try to take the wind out of those sails. So Claire Wardle of First Draft media has advice to journalists, which is to create what she calls a truth sandwich, which is that you start by saying, “This is going to be a lie. Here’s what the lie is, and here’s why it’s wrong.” As opposed to saying, “Well, this event happened. People on this side said this. People on that side said that. Isn’t it terrible how much conflict there is? Look, let’s talk more about the conflict,” which is like saying, “Ignore that elephant in the room.”

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There are lots of different strategies like this. There are strategies for the media. There are strategies for those of us who are talking about this, which is to shift attention toward the more positive aspects. I thought that that’s in part what Cory Booker was doing. When he says, “We’re not going to let them steal our joy,” he means even to focus on those accusations is going to distract from the historic appointment here. So you dilute the bad with the good. You try to flood the zone with better information or more positive assessments in this case.

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What are the implications of how misinformation played out this week at these hearings going forward for how we think about wins and losses and what we’ve learned?

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One thing that concerns me is that while we have celebrated the fact that Ketanji Brown Jackson is a district court judge, this shows you why they don’t get appointed all that often. If you have 500 opinions, you’re going to have some in criminal cases with pretty unattractive defendants. If you take sentencing seriously, as she does and as most judges do, then anyone is going to be able to take a particular case and then blow it out of proportion. We’ve seen that here.

I worry about two things. I worry about our inability to appoint qualified district court judges like this to higher judicial office. Then second, I worry about the signal it’s now sending to judges around the country. We were lurching toward some consensus on criminal justice issues over the last few years. Bipartisan consensus on rationality and sentencing and the way that we should be thinking about criminal justice issues, with respect to racial, disparate impact, as well as other things. I worry that these hearings are blowing that apart and that we’re turning back the clock to the 1980s.

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I’m interested in what checks bad impulses. I guess I really thought that when the National Review Online debunked the most outlandish charges—even on Fox News, we had some debunking—the Republican Party answered to that. It turned out they just blew past that. It was immaterial, and it raises questions for me about what still has a checking function. If there’s nobody to pump the brakes or the brakes being pumped is immaterial, then it raises the question of what happens next time.

I don’t think that any publication is going to chill the ambitions of politicians that want to play to a particular constituency that is frothing at the mouth on these issues. Look, in some ways, that’s the lesson in the last five years, which is that there is no elite institution—and I’ll throw National Review in there as an elite institution—that will be able to stop the tide going over the banks here once it’s been unleashed. What elites are learning is that they can unleash the tide with relative ease if they have a concentrated moment where the cameras are on and they can create these kind of events that then can reverberate around the information ecosystem.

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I guess this is a good segue to the revelations that came out late Thursday about the text messages between Clarence Thomas’s wife, Ginni Thomas, and White House chief of staff Mark Meadows. Again, the reason this feels like it’s in your wheelhouse, Nate, is that I think the shocker in reading some of those texts is that stuff is not high-minded Federalist Society… This is just straight-up watermarked ballots, Sidney Powell, release the kraken. This feels like it’s really very dangerous crackpottery, for lack of a better word, and it’s coming from inside the house.

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This is stuff that we thought was fringe, and it’s infiltrated the discourse at the highest levels. My question for you is: Is it in any way material to you that Ginni Thomas is embracing the idea that the Biden family’s going on trial for war crimes and Guantánamo?

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Well, I do think this is a perfect example of the feedback loop with disinformation. We’re talking about participatory disinformation. It’s not as if it’s just random people in QAnon echo chambers who are then talking to themselves with no consequence, either for public policy or for elite discourse. It goes into elite discourse because elites are paying attention to this, and all the more so when you have a president that has an active Twitter feed, right? So then it goes up, it goes out, and then it goes back on and goes onto the cable news networks and the like.

What’s important to understand is that no matter how often you debunk a particular claim, whether it’s about Italian satellites having an impact on the election, Dominion Voting Systems, dead people voting, noncitizens, Sharpies in Arizona, whatever, it’s this was a multiheaded beast. The claims of fraud were so heterogeneous that there was really no way to defeat the argument because there were many different types of arguments. And it’s not just the fringe groups that believe this. It is now orthodox, so that then it has an effect on people in positions of power and decision-making.

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