Speaker 1: The question occurs on the nomination of Ketanji Brown Jackson of the District of Columbia to be an Associate Justice of the Supreme Court of the United States. On this vote, the yeas are 53, the nays are 47, and this nomination is confirmed.

[applause]

Steven Valentino: Ketanji Brown Jackson won the support of several Republicans in the Senate to finalize her nomination as a Supreme Court justice, but the confirmation hearings along the way featured political grandstanding of the most blatant and even racist kind. Jane Mayer has been writing about the Supreme Court for years for The New Yorker. We're joined as well by Anita Hill, who's a professor of social policy and law at Brandeis University. Anita and Jane, thanks so much for joining us.

Now, the nomination process for Ketanji Brown Jackson, although successful in the end, was grueling and at times extremely ugly. Anita, you face the Senate Judiciary Committee in your time during a very different nominating process. What was going through your mind as you watch those hearings?

Anita Hill: First, just let me make very clear, I was a witness in a confirmation hearing, Ketanji Brown Jackson is the nominee. I wasn't surprised that there was an attack on her. I was shocked at the level or the depths that they would go to discredit her. I think we need to think about the cumulative impact that it has on her as the first African American woman to be nominated for the Supreme Court position, but also the effect that it will have on her and her colleagues; Justice Sotomayor and Justice Kagan, as they begin leadership of what will be very likely a minority group on the Supreme Court. There's even larger impact on the court itself, the credibility of the court, and the process for selecting judges was on trial, and I think damage was done to all of those.

Steven Valentino: Jane, you're a close watcher of the Senate, how is this nomination compared in tone and substance to the hearings prior to the hearings for Justice Kavanaugh and Coney Barrett?

Jane Mayer: Well, I found it just strikingly and depressingly familiar, particularly to the confirmation hearings of Clarence Thomas, and the way that Anita Hill was treated. I have to say, that is the echo that I kept hearing in this and to some extent, Christine Blasey Ford. As Anita Hill saying, these were witnesses, but what the salient thing to me, was just demeaning. In fact, also something an interesting theme to me was that there was a weird sexualization in all of these attacks, where the women were made to look outside of the norm. In particular, I thought it was interesting that they went after Justice Jackson on her handling of sexual offenders and particularly child pornography cases, and made her look permissive in some way as if she was somehow outside of the norms.

Anita Hill way back in the day was described as a ludomaniac and described as nutty and slutty and all these awful things. There were white men who were casting women as being somehow dangerous in the sexual area. I found that just depressingly familiar.

Anita Hill: Yes, I would definitely echo all of what you've said. The sexualization part, it is a way of denigrating women, and it was all done from this associational baggage that they were piling on her. She was associated with pedophilia because they disagreed with a sentence that she gave to one individual. Not only does that sexualize her, it feeds into this QAnon conspiracy theories about Democrats and pedophilia that have been swirling around, I guess, at least for now for the past four or five years.

It was easier for the sexualization to stick because she is a Black woman. That has been the history of the treatment of Black women, over-sexualizing us for political reasons. In this case, we see it at its highest level in our government, or maybe at its lowest level, but it's coming out of our Senate, and it is reflecting on our highest court.

Steven Valentino: It is an accumulation of moments of Senator Cotton, Senator Hawley, Senator Cruz, Blackburn and the accumulation of things seem to be what we would have thought were fringe attacks, all of these accumulate to form a certain image, and so, toward what political end for these senators?

Anita Hill: I think that the real political end, one, is to denigrate her personally, honestly, but also to really reduce the validity of any opinions that she ultimately writes. Even though I understand that many of her opinions will be dissenting opinions. Dissenting opinions can carry a lot of weight, especially in future cases. The dissenting opinions can help shape reasoning, even of the majority opinions, because they can push back on some ideas that the majority might have. I am absolutely sure that they are trying to neutralize her power and importance, but I also think that there is a strategy.

I think this has been announced by Lindsey Graham. There's a strategy that they want to shape the court in their own making. Lindsey Graham has suggested that in the future when the Republicans control the Senate Judiciary Committee, that even though the constitutional allows for the President to choose a justice for the Supreme Court, he's already signaled that they won't be allowed to even have a confirmation hearing. It's not far-fetched to say that, one, they may even be signaling to potential judges who are moderate or liberal, that they need not even apply. In fact, I've actually talked to people who said that they would not want to have to go through a process like the one that they have seen in the past couple of weeks.

Steven Valentino: You too, Jane, see this as a systemic chilling effect on not only the justice system but on the future of nominations that even come before the Senate for confirmation.

Jane Mayer: I do. I think the signal that it sent loud and clear, it's basically that from now on, there will be no Supreme Court justice who is confirmed unless the president has the majority in the Senate.

Steven Valentino: How do you both look at this in historical terms? As you well know, the Republican argument is, you guys started it with Robert Bork that the highly politicized confirmation process began with the confirmation hearings for Robert Bork and Ted Kennedy's accusations leveled at him and so on. Do you see that as legitimate, Anita Hill?

Anita Hill: Absolutely not. When you look back at the Bork hearings, you will see that there were Republicans who joined the Democrats voting against his nomination. It wasn't as though that there was a democratic attack on an individual that no one on the Republican side agreed with, the decision not to confirm Judge Bork was bipartisan. Secondly, the attack was really on legitimate differences in constitutional interpretation. I don't see it as the same.

Even if you say, there was an attack on Robert Bork, it did not reach the depths that the attacks on Judge Jackson have reached. If I would just want to be clear, if we do not understand how racism and sexism played into what became a political campaign against her, and the racism played into these tropes and myths about Blacks being soft on crime, it played into this idea that any effort to address racism is itself racist. The attack was built on the lie that she had somehow been a part of teaching critical race theory in an elementary school.

The evidence that Ted Cruz presented was a picture book, a child's picture book. It just shows the absurdity of his positioning, how far that they were willing to go. I had not a picturebook waived, brandished, but in the Thomas hearing, Orrin Hatch waived a copy of The Exorcist around. Again, these kinds of tactics and approaches, none of that happened. In the Bork hearing, none of that happened in the Bork hearing. It did happen when the people that they were confronting were two Black women.

Steven Valentino: Anita Hill, thank you so much for joining us.

Anita Hill: Thank you so much for having me today.

Steven Valentino: This is The New Yorker Radio Hour. We're talking about the state of the Supreme Court. Now Jane, we just talked with Anita Hill. I want to talk now about Justice Clarence Thomas. I should probably say, outwardly that Anita Hill prefers not to talk about Thomas after those nomination hearings so many years ago. You've been covering the huge controversy over the political activism of Ginni Thomas, who is encouraging Trump's Chief of Staff, Mark Meadows, to help overturn the 2020 elections. Give us some sense, first of all, how Ginny Thomas became such a political force?

Jane Mayer: Well, she's always been a political activist even from the time that Clarence Thomas, first married her, she was working for the Chamber of Commerce and working against equal pay for women. She's been involved on the right in politics for a very long time. During the Trump administration, her role really grew. It was behind the scenes for the most part, but she was trying to get meetings inside the White House, trying to meet with Trump, which she managed to do, at some point, carrying lists of people that she thought he should fire and she was becoming someone who was recycling some of the most fringe theories in America, including QAnon theories. What surfaced when we finally got to see her text messages to former Chief of Staff to Trump, Mark Meadows, were just how far out her views were, and just how deeply, deeply involved she was in that effort to try to overturn the 2020 election.

Steven Valentino: Okay. Let me stop you there. What you hear in Washington in some quarters is, "Well, this city is filled with married couples with both have political careers. Aren't people allowed in a marriage to have their own separate politics, views, no matter what you think of those views?"

Jane Mayer: Yes. Of course, they are and the critics of the critics here have said, "Oh, this is sexist to go after Ginni Thomas, which is really a red herring because nobody is saying she can't have her own views. What they're saying is a Supreme Court justice like any other judge is bound by-- there's a specific law that says that no judge no matter which court they sit on, it's a federal law. It says, they cannot sit on a case in which their spouse has an interest in the outcome.

What we learned from all of this was that Justice Thomas actually sat on a case that involved the January 6 investigations. We now know his wife was part of the effort to overturn the election that is under those investigations. He was basically sitting on a case that involves his wife. There are many other examples which we didn't-- I tried to layout in The New Yorker story of issues in which Ginni Thomas has a stake. In one case at least she had a financial stake. Basically, the issue was whether he should recuse. It's not an issue of whether she should have her own opinions.

Steven Valentino: Does he decide recusal on his own or can Justice Roberts say, "Hey, you better recuse yourself on this." How was recusal decided?

Jane Mayer: It's amazing in this day and age, but the justices completely decide on their own, and there's no enforcement method over them. The Chief Justice could certainly suggest that Clarence Thomas recuse, but it hasn't been done. It's really not the norm and the Chief Justice, despite the higher title doesn't really have any specific authority over any of the other justices' recuse.

Steven Valentino: There's really no recuse, is there other than the pressure of politics or embarrassment?

Jane Mayer: Well, under the Constitution, the only recuse is impeaching a Supreme Court justice. It's only been tried once, and it was in 1804 and failed. There is actually a lot of legislation that has been suggested. Right now, there's a bill called the, I think it's The Twenty-First Century Courts Act, but it only has democratic sponsors in the Senate and the House to try to bring in some enforcement method of ethics on the Supreme Court.

Steven Valentino: Jane Mayer, thanks so much.

Jane Mayer: Great to be with you.

Steven Valentino: Jane Mayer is a staff writer. We spoke also with Anita Hill, who is a professor of social policy, law, and women's studies at Brandeis University.

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