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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. We'll move away from the Ukraine war coverage for our first segment today, but then later this hour, we'll have a very special guest, chess master and pro-democracy activist Garry Kasparov.

You may know he is a Russian, and a major critic of Vladimir Putin and he does a lot to connect the dots between the rise of Putin as an autocrat in Russia and some of the troubling developments in this country in recent years as well as the rise of autocrats elsewhere. I'll be curious to hear if he thinks those other autocrats are rallying around Putin, and what the implications of the invasion might be for places very far from Ukraine, including the United States.

He also has an op-ed in the Daily News saying exactly what he wants the West to do now, so Garry Kasparov later this hour, but I want to make sure we don't ignore the other big thing that happened on Friday in addition to the invasion. Shortly after our show on Friday afternoon, as many of you know, President Biden officially nominated US Appeals Court Judge Ketanji Brown Jackson for the opening that's coming this summer on the United States Supreme Court. Judge Brown Jackson spoke for just a few minutes, including to thank, on Friday, a certain person in the judicial branch of government for whom she used to clerk.

Ketanji Brown Jackson: Associate Justice Stephen Breyer of the Supreme Court of the United States. Justice Breyer, in particular, not only gave me the greatest job that any young lawyer could ever hope to have, but he also exemplified every day in every way that a Supreme Court justice can perform at the highest level of skill and integrity while also being guided by civility, grace, pragmatism, and generosity of spirit. Justice Breyer, the members of the Senate will decide if I fill your seat, but please know that I could never fill your shoes.

Brian Lehrer: Judge Ketanji Brown Jackson at her introductory event on Friday, thanking and paying tribute to Justice Breyer, but he's not the only one she thanks. I would like to play a little more from the event. Most of the media haven't been playing anything but little snippets of like a few seconds, and because this news got a little drowned out by Ukraine, I thought you might like to hear a little bit longer of a stretch of how Judge Brown Jackson introduced herself. Here's about two and a half minutes, and as I said, Justice Breyer was not the only one she thanked.

Ketanji Brown Jackson: I must begin these very brief remarks by thanking God for delivering me to this point in my professional journey. My life has been blessed beyond measure, and I do know that one can only come this far by faith.

Among my many blessings, and indeed, the very first is the fact that I was born in this great country. The United States of America is the greatest beacon of hope and democracy the world has ever known.

I was also blessed from my early days to have had a supportive and loving family. My mother and father, who have been married for 54 years, are at their home in Florida right now, and I know that they could not be more proud.

It was my father who started me on this path. When I was a child, as the President mentioned, my father made the fateful decision to transition from his job as a public high school history teacher and go to law school. Some of my earliest memories are of him sitting at the kitchen table, reading his law books. I watched him study and he became my first professional role model.

My mother, who was also a public high school teacher, provided invaluable support in those early days, working full-time to enable my father's career transition while also guiding and inspiring four-year-old me.

My only sibling, my brother, Ketajh, came along half a decade later, and I am so proud of all that he's accomplished. After graduating from Howard University, he became a police officer and a detective on some of the toughest streets in the inner city of Baltimore. After that, he enlisted in the Army, serving two tours of duty in the Middle East. I believe that he was following the example set by my uncles who are in law enforcement.

You may have read that I have one uncle who got caught up in the drug trade and received a life sentence. That is true, but law enforcement also runs in my family. In addition to my brother, I had two uncles who served decades as police officers, one of whom became the police chief in my hometown of Miami, Florida.

Brian Lehrer: Judge Ketanji Brown Jackson, two and a half minutes of her on Friday after she was introduced as President Biden Supreme Court nominee. Let me play one more clip before we bring in our guest to talk about this nomination and the road ahead. Could you ever imagine a white nominee being asked this question that Texas Senator John Cornyn asked Brown Jackson last year at her court of appeals confirmation hearing?

John Cornyn: What role does race play, Judge Jackson, in the kind of judge that you have been and the kind of judge you will be?

Ketanji Brown Jackson: I don't think that race plays a role in the kind of judge that I have been and that I would be.

Brian Lehrer: Well, despite the racist question, Judge Brown Jackson was confirmed with 53 votes, including three Republicans, Lindsey Graham, Lisa Murkowski, and Susan Collins. That might not happen this time, though. Graham has already put out a statement about the nomination, saying, "The radical left has won Joe Biden over again." I guess we'll be holding our breath to see what Joe Manchin says. So far he says he hasn't made up his mind.

With me now is Columbia University law professor Olatunde Johnson, an expert on the Supreme Court, constitutional law, anti-discrimination and equality law, and social justice. She too has clerked for a Supreme Court justice, John Paul Stevens, served on President Biden's Presidential Commission on the Supreme Court, was counsel to US Senator Edward Kennedy on the Senate Judiciary Committee. Of course, it's the Judiciary Committee which holds the confirmation hearings, and she has worked for the ACLU and the NAACP Legal Defense and Education Fund. Professor Johnson, great of you to join us. Welcome to WNYC.

Olatunde Johnson: Thank you for having me, Brian.

Brian Lehrer: First, in your view, why Ketanji Brown Jackson out of the various people President Biden interviewed was seriously considered for this nomination?

Olatunde Johnson: Well, first of all, let me just say those clips that you shared were really moving. I think they really give us a flavor of the importance of this appointment. It's a historic nomination, hopefully, it'll translate to an appointment. It's really a moment just to pause and celebrate.

I'm really struck, and this is probably what Biden was motivated by. I'm really struck by the breadth of her experience. She really has these traditional top academic credentials, the sort of double Harvard, that we associate, for better or worse, with the Supreme Court. She's also been a judge for nine years on the trial court, the appellate court, she clerked herself on the Supreme Court, as she shared in that clip. She's worked in private practice, she's worked as a public defender.

I think that breadth of her experience is really, really remarkable and will be unique on this court, and it's important for a court that decides lots of criminal justice issues, lots of rules that govern trials, and really shapes access to justice.

Brian Lehrer: I want to ask you about some things in those clips. Of course, people who may not know what the reference "double Harvard" meant, it means she went undergrad then she went to Harvard Law, right?

Olatunde Johnson: Yes.

Brian Lehrer: The clips from the introduction with President Biden on Friday, did you think she was consciously making some political points either to Republicans in the Senate or to the greater public at large who may know nothing about her by first thanking God and invoking her faith, and then mentioning that the United States is the greatest beacon of freedom, and mentioning things like her brother has been a cop and served in the military and that she has intact parents? Those all seem to be designed to send messages.

Olatunde Johnson: In the current climate, and one in which we saw the rhetoric even before she was nominated, being one around the question of quota and qualifications, I think it's an asset that she has public defense experience, but you could see that being twisted into something negative instead of being something that allows her to have had that firsthand experience representing low-income people, people accused of crimes. It could be twisted as a negative that she's somehow not able to see both sides, so I think she was keenly aware of that.

At the same time, I think she's presenting herself in a super authentic way. I've had the occasion to meet her on several occasions. She clerked a few years after me and I've met her, she's come at Columbia for scholarly invitations, but also just to talk to our students, and that's the authenticity she brings to every interaction. She's describing her life and her family and these experiences have shaped her, and she's not going to be just reduced to some stereotype.

Brian Lehrer: You heard the clip of Republican Senator John Cornyn last year at her Court of Appeal's confirmation, asking her if race plays a role in her decisions, and her answer that it does not. In your experience, maybe as counsel to Senator Kennedy on the Judiciary Committee or just your knowledge of history, has any white nominee ever been asked what role race plays in their judicial decisions?

Olatunde Johnson: Not in that way. I would hope that this is not the tenor of the confirmation hearing. It is really important. I worked in the Senate, and I know it's really important that the Senate exercises its role of advice and consent. It's also really hard to get answers sometimes from nominees. It's not that the Senate shouldn't be asking tough questions, but it's an odd one to ask about when you don't generally ask about that.

It's interesting her answer is, "Race doesn't shape my experience as a judge." I think that she'll be encouraged to have that answer. I think the answer is a little bit more complex for all of us. We all inevitably bring our life experiences to how we think about legal issues and it shapes the questions we might ask at oral arguments. It might shape how someone writes their opinion, but it doesn't mean that race determines the outcome. That's not true for her, likely, any more than it's true for any of the other justices.

Brian Lehrer: Judge Brown Jackson did say, at an earlier confirmation, something about lived experience. She said, "I've experienced life in perhaps a different way than some of my colleagues because of who I am and that might be valuable. I hope it would be valuable if I was confirmed to the circuit court." Now that doesn't sound like a controversial statement to me, but do you think it's something some of the senators on the judiciary committee might twist into something?

Olatunde Johnson: I think it's very possible. There's no way in which this confirmation hearing is going to be smooth, even though it should be. Understand that she was just recently elevated from the district court to the appellate court. There was plenty of opportunity to comb through her record and really nothing was found, yet some Republican senators voted against her. They said very little about why. Given the public statements, and you mentioned some already, against her, I suspect that they're going to try to pull out what they can and shape those statements into something negative. Judges are not robots. I'm really skeptical that they're even umpires.

Brian Lehrer: As Chief Justice John Roberts famously put it.

Olatunde Johnson: Yes, but, in any event, they aren't robots. Every justice, every nominee has been introduced with their personal biography. I'm always really struck, the thing that I always remember is Justice Sandra Day O'Connor talking about her relationship with Thurgood Marshall. Thurgood Marshall, as many of you know, was the first African American on the Supreme Court. He had been an attorney at the-- and headed the NAACP Legal Defense Fund, argued Brown versus Board of Education. What really she talks about is his experience representing Black people who were accused mostly unjustly of crimes in the South during the height of the Jim Crow era.

She talks about how these conversations with him really shaped her perspective on decisions. It was partly about empathy and understanding lived experience, but it also shaped her interpretation about how these rules that are being decided at the Supreme Court level, how they play out in actual trials, and how they affect criminal justice issues. I think that kind of lived experience as well as the legal experience that someone like Judge Brown Jackson will bring to the court is important.

Brian Lehrer: Before we move away from her biographical statement on Friday to other aspects of this nomination, I also thought about a racial double standard in relation to her acknowledging that she has an uncle serving a drug-related life sentence, but then saying she has another uncle in law enforcement. I thought, "Has any white nominee ever had to prove that something done by an uncle shouldn't be held against them as a nominee for something?"

Olatunde Johnson: I really don't know, but I'm quite skeptical that that has come up. I think it's just to show how there will be this questioning of her in ways that are highly racialized and troubling. I was really moved by that clip. I hadn't heard it until you played it, and I was moved by it because as someone who's a Black person in this country, I can say that I have relatives who are in law enforcement and who've served in the military, and also people who've been affected and unfortunately killed by police violence.

I think that that full range of experience helps you bring the kind of understanding that's important for judges and justices who have this much power. Yes, it is a double standard, it's unfortunate. I hope is nipped in the bud because it's actually quite distasteful that she has to defend herself on those terms.

Brian Lehrer: Listeners, we can take your questions or comments on the Ketanji Brown Jackson Supreme Court nomination for Columbia Law professor and former Supreme Court clerk, among many other things, Olatunde Johnson. 212-433-WNYC. Our calling number is always 212-433-9692, or you can tweet a question @BrianLehrer.

One of the distinguishing features of Judge Brown Jackson's career, as you mentioned, is that she was a public defender that was in the federal court system. I think she would be the first former public defender of any kind to sit on the Supreme Court. Do you know?

Olatunde Johnson: Yes, I think she is but I would count Thurgood Marshall. The time before the public defense system was quite vigorous and he represented people who were facing the death penalty in a lot of criminal justice issues, but yes, the first public defender in an official sense, and certainly the only one right now. There's a history of appointing a lot of prosecutors to the Federal Court, so the bench for them is much deeper, and that's fine. I think it's been important that Biden has made a point of also nominating people who have had defense experience.

Brian Lehrer: What's the significance of that? Take us further into that, to justice. In your opinion, to have worked on the ground as a public defender, what might come before the Supreme Court? We think about the Supreme Court so often as judging these constitutional questions, is there a right to an abortion? Whether it's the right to own guns, but there are also a lot of cases affecting individuals, right?

Olatunde Johnson: There are tons of cases affecting individuals, and it's true that those are less salient for the public, and sometimes the judges aren't as divided on those issues. You see people crossing what we would think of as being the aisle on those issues more than in the usual case. I think it'll make a difference, her understanding of criminal procedure. The Supreme Court decides a lot of things involving criminal procedure issues.

I think it'll, her knowledge of sentencing. She served on the Sentencing Commission at a very critical time when they were thinking about sentencing disparities. The meaning in a human sense of sentencing, but also how the system works. I think it will also be important that she understands policing as an institution, maybe in a very personal sense with regard to her brother, but also, when you're a public defender, you really get an understanding of how the police work and you interact with that institution and those individuals a lot.

Brian Lehrer: Here's one more clip from her Court of Appeal's confirmation hearing last year. This is Senator Tom Cotton of Arkansas using her public defender background to imply she's unpatriotic.

Senator Tom Cotton: Have you ever represented a terrorist at Guantanamo Bay?

Ketanji Brown Jackson: About 16 years ago when I was a federal public defender.

Brian Lehrer: I'm just curious, professor, how you would describe the context of that exchange, and do you expect a repeat? This time, I'll note that some of the most partisan and sharp-tongued, and even January 6th-supporting senators are members of the Judiciary Committee, which will hold the hearing. Josh Hawley, and Ted Cruz, and Tom Cotton who asked that question, in addition to Senator Cornyn, the very conservative Mike Lee of Utah, John Kennedy of Louisiana, Marsha Blackburn of Tennessee. What a list? As well as Lindsey Graham and others. Are they going there again?

Olatunde Johnson: This is probably but this is a nominee who's already been a judge for nine years. I think it's actually a sign that they've gone through her record thoroughly and there's really nothing on her other than she did what was her constitutional right, and also something that we should celebrate in our constitution that people have the right to defend themselves.

I think that, yes, I expect questions like that but I think it's showing that there's really nothing else to ask about. I don't think the audience for that-- I think they're disingenuous questions, and I don't think the audience is really her, it's really the larger public and we know that this issue of judicial nominations is very, very important to the Republican base and particularly to those senators who you mentioned. I expect more questioning on those grounds, unfortunately.

Brian Lehrer: We'll continue in a minute with more on the nomination for the Supreme Court of Ketanji Brown Jackson with Columbia Law professor and former Supreme Court Clerk-- I get it again. I stumbled over that exact same two words, "court clerk". Former Supreme Court Clerk herself, Columbia Law Professor Olatunde Johnson. We'll go to some of your calls and interesting tweets that are coming in right after this.

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Brian Lehrer: Brian Lehrer on WNYC as we talk about the nomination of Ketanji Brown Jackson to the Supreme Court with Columbia Law Professor Olatunde Johnson. Coming up in about 10, 15 minutes, Garry Kasparov, the Russian dissident and global democracy advocate on the situation in Ukraine. Garry Kasparov will take your calls and tweets as well. That's coming up.

Professor Johnson, here's an interesting tweet that came in. The question is, "Does the historic advent of a fourth female justice, three liberals and one conservative, have the potential to become an important block, perhaps nudging Justice Barrett toward more centrist rulings?" Interesting question.

Olatunde Johnson: That is an interesting question. I tend to be someone who is very hopeful about the court even when it might seem a little bit naive. They do interact with each other, and they change over time. I clerked for Justice John Paul Stevens, who was appointed by Republican president. He certainly changed in various ways over the course of his time there.

I think this will be an interesting dynamic to have a court for the first time and how the court approaches gender issues but not just limited to gender issues and repro rights but even just how questioning happens in oral argument or how justices interact with each other informally. It'll be interesting to see that dynamic on the court. We can't predict but I'll be looking for that too.

Brian Lehrer: Tessa in Manhattan, you're on WNYC. Hi, Tessa, thank you for calling in.

Tessa: Yes, all these objections from white male senators sound just like they're complaining that a white male justice should be appointed. Anyway, my question is, was Justice Clarence Thomas also asked questions about race?

Brian Lehrer: Good question since ideologically he's what's considered on the other side. Do you happen to know, Professor Johnson?

Olatunde Johnson: I don't happen to know off head. Of course, Justice Clarence Thomas had a famously contentious nomination hearing where race was in full display. I know he brought up race. It was mostly around questions around his being accused of sexual harassment of Anita Hill, but he brought up race very pointedly and said famously, it was a high-tech lynching of him. I don't know if race was brought up by the senators though but I think it would be a mistake to say that it wasn't on the surface because it was. He was certainly being appointed to the seat of Justice Thurgood Marshall, who had been a civil rights hero and he was in another mold.

His racial background or his background, his journey was really celebrated by the conservatives who were putting him forward. It was maybe not explicit until he brought it up but it was certainly in the ether for us all watching it.

Brian Lehrer: Here's another tweet that says, "Be fair. If Biden foolishly announced that he would appoint a Black woman instead of just doing so, is it not that unreasonable to ask if race would influence her decisions?"

Olatunde Johnson: Yes. I think he certainly could have just done it, but I don't think it's wrong for him to say that he cares about diversity on the court. That doesn't mean Open Season unless we're going to start asking that question for every nominee. There's a sense in which sometimes in the way we talk about race, it's as if only people of color have a race and that everything else when we're not talking about race, we're in somehow a domain of neutrality. I don't think that is a way to think about the courts at all. Certainly, it's not a way to think about human beings and it's certainly not a way to think about society.

When we're not talking about race, we're in some colorblind zone. I think does not take into account the way in which experiences inevitably shape people but that's not the same as asking, "Do you have a race and is it going to influence your view on a particular opinion?"

Brian Lehrer: Roland in Albany, you're on WNYC. Hello, Roland.

Roland: Hi, how are you doing? This is a fantastic segment. I just wanted to find out what the two of you thought about Senator Cotton's comment when you really think about it. I worked at Legal Aid at a time when we represented illegal immigrants. We represented people because they were entitled to representation. Nobody from Guantanamo was ever convicted of anything and Judge Brown was on the Federal Public Defender roles. Of course, Senator Cotton knew the answer before he asked the question.

My other comment is that we are not race-blind people. I am Black, I went to law school and I never stopped being Black because I went to law school. You take your blackness into whatever you do because that's who you are. For years, presidents nominated people like Roger Taney from my home state of Maryland to Supreme Court. Never said, "I'm going to name a white guy."

Justice Taney went on to write a decision in Dred Scott where he said that Black people had no rights whatsoever that any white person had any obligation to respect. We've come full circle from Justice Tawny, and I think that until we get past thinking that we can't talk about race, race is always going to be a factor. That's my comment. Thank you very much.

Brian Lehrer: Roland, thank you very much. Professor Johnson, anything you want to say to Roland?

Olatunde Johnson: Yes. I think Roland makes a lot of good points. First and foremost, there should be no being on the defensive about the idea of nominating someone who has public defense experience but then also on the question of race. If you're talking about democracy and inclusive democracy and multiracial democracy, you need Black women on the court, you need lots of people of color on the court, you need women on the court of every race. This is what our courts should look like.

It shouldn't be that the default is that you only have white men on the court and everyone else has to defend themselves. I think that the Republicans are going to be on dangerous grounds if that's the narrative they're trying to promote.

Brian Lehrer: I realized you're a law professor, you're not a Washington, DC political analyst who's counting heads in the Senate. Do you have any impression about swing vote Democrats, Joe Manchin, and Kyrsten Sinema? I read that Manchin said he wants to meet with Judge Jackson before making up his mind. That's different than a lot of Democrats who are coming out for her right away but he does have a record of supporting President Biden's judicial nominees so far for lower courts. They never make the news but there have been I think several dozen. I think he's voted for all of them.

Do you expect the Joe Manchin drama on this like on Paid Family Leave or anything else in the Build Back Better Bill, or do you have any basis on which to even speculate?

Olatunde Johnson: I think that we should take heart in the fact that he has supported Biden's nominations, and I think some of that comes from the idea that's often repeated in the Senate that while advice and consent is important, the President should be able to get his nominees, elections have consequences, et cetera. I'm sure there'll be a lot of pressure on him and he's maybe the only possible person who would peel away maybe. There's not more. I'd be interested in hearing from people who are closer to the ground, but I am hopeful, at least based on his record so far.

Brian Lehrer: You know what might become a footnote to history or maybe a very poignant moment. If it splits completely along partisan lines, it would be 50/50, and Vice President Harris would cast the tie-breaking vote, and we would have the first Black woman vice president breaking the tie for the first Black woman Supreme Court justice.

Olatunde Johnson: I appreciate how historic and symbolic that would be. I would think it would be disappointing if she cannot get some Republican votes. Really, there's nothing in her record that suggests that anyone should vote against her. The clip that you played at the beginning was her talking about Breyer, who was confirmed by overwhelming majority of people when he was nominated to the court. Her record is much like that, but she also talked about his qualities, and I think she has them in spades.

She talked about his civility, his grace, his pragmatism. Her former clerks talk about that, I witnessed that in her interaction with me, with her students, with professors here, and I know she's like that as a judge. Really, I think it's unfair to her and more of a testament of our current political moment if that's the journey.

Brian Lehrer: Here's one Republican who has spoken very positively about her. He happens to be related to her and he happens to have been excommunicated from the party by Donald Trump, never mind that, but it's former Speaker of the House, Paul Ryan, here he is.

Paul Ryan: My praise for Ketanji's intellect, for her character, for her integrity, it's unequivocal. She's an amazing person.

Brian Lehrer: I don't know if Paul Ryan's word carries any weight with Republicans in Washington anymore, but there he is, they are related through marriage.

Olatunde Johnson: We'll see if it carries any weight. People say that they want a judge or a justice with a certain kind of temperament, and an openness of mind. I think that's a better way of thinking about a judge, more than balls and strikes and, does race shape your experience? Which it inevitably does. It's really about their temperament. It's about their willingness to really listen to the complexities of a case and really understand an issue on multiple dimensions. That's what you want.

Brian Lehrer: We got one more caller in here who personally has met Ketanji Brown Jackson. Ethan in Brooklyn, we have exactly 20 seconds for you. Go for it.

Ethan: Hey, Brian, thanks. Ketanji Brown at the time directed me in a play in college in the play, I'm not Rapoport. She was fantastic. She was smart, she was empathetic, she was open to learning about a different culture, namely, the character who's a New York Jew. Funnily enough, she wanted the damns changed to darns because her nephew was going to be coming to see the play.

Brian Lehrer: Ethan, thank you for that anecdote. Very interesting. Maybe she'll start a Supreme Court Theatre Club, find some plays that have a cast of nine, who knows. There, did you want to say something real quick?

Olatunde Johnson: Well, really quick. I love that story, and I think it says a lot about her and the Supreme Court, that justice is sometimes put on plays. Sandra Day O'Connor used to do that.

Brian Lehrer: Columbia University law professor, Olatunde Johnson, thank you so much. We really, really appreciate it.

Olatunde Johnson: Thank you for having me, Brian.

 

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