Ketanji Brown Jackson will bring lived experience as Black woman to Supreme Court, says BU’s law dean

Today is the final day of Supreme Court nominee Ketanji Brown Jackson’s confirmation hearings at the Senate Judiciary Committee. The Harvard-trained judge has testified in front of lawmakers for a total of 24 sometimes tense hours over the past two days. Today's hearings will wrap up with testimony from outside witnesses and the American Bar Association. Angela Onwuachi-Willig, dean of Boston University School of Law, joined hosts Paris Alston and Jeremy Siegel on GBH’s Morning Edition to talk about her testimony and what’s to come. This transcript has been edited for clarity and length.

Jeremy Siegel: What has stuck out to you so far from Brown Jackson's performance?

Angela Onwuachi-Willig: I think what stuck out to me is her temperament, and she is basically just so calm and measured in her responses. She is brilliant, clearly a very careful jurist, and so I think she looks phenomenal. She's very clear, answering questions very well and just calm really when she's under fire, and asked the same questions over and over again.

Paris Alston: Dean, it might be because Jeremy and I are of a younger generation, but it just doesn't seem like in the past people have been talking about and so tuned in to the confirmation hearings. That's changed in recent years and decades — social media is buzzing and the political climate that we're in now. How would you rate the contentiousness and the stakes of this particular hearing to others?

Onwuachi-Willig: I think that this is much more contentious than I expected. I think she's such an exceptional candidate. It seems to me like she is a clear confirmation that I didn't expect that there would be the kind of attacks that there have been. I knew there would be attacks, but I didn't expect them at this level. It's clearly very contentious.

You know, in recent history, we had the hearings for Justice Kavanaugh, which were also very contentious as well. I think increasingly, ever since the hearing for Robert Bork, you've seen much more attention paid to Supreme Court confirmation hearings. And it's taken on a different dimension, a more political dimension. And it's been much more divided, including on the votes in terms of how people vote on candidates.

Alston: And her nomination is also historic. If confirmed, she would be the first Black woman on the court and that's been playing out in the testimony. Senator Cory Booker praised her for that, for bringing that new perspective. At the same time, Senator Lindsey Graham brought up how Democrats blocked the nomination of a conservative Black woman, Judge Janice Rogers Brown, in 2005, to the U.S. Court of Appeals. And you also wrote an op-ed for us to air today about her lived experience as a Black mother and how that can add a really unique perspective to the court. So, given all of that, how are you viewing this moment?

Onwuachi-Willig: As Senator Booker said, I'm not letting anybody steal my joy. I find it to be an incredibly joyous moment. This exceptional jurist, I'm hoping, is just days away from being confirmed on the Supreme Court. And of course, now there's there an attempt to delay the proceedings and the vote, or at least attempt to delay the vote. But I am hoping that this will happen any moment now. As Senator Booker said she has earned this spot. She is a great American. She is somebody who has excelled at everything she's done. And as another person said, she's like Ginger Rogers. She did everything that Fred Astaire did, except for backwards and in high heels.

Siegel: If Brown Jackson is confirmed, she would also be the first public defender on the court. Why is that significant?

Onwuachi-Willig: It's incredibly significant. First of all, I should just say that what we've seen on our federal courts, the federal trial court, the federal appellate court level, until President Biden really took office, most of the people who were getting confirmed on the federal bench were people who were former prosecutors, people who were former assistant United States attorneys or a United States attorney for a particular state. Those were the people, the people who were coming from a prosecution lens or from a corporate law firm lens, were more likely to be confirmed on the federal bench.

And so the fact that you have somebody who understands what it's like to, number one, to need the government to pay for the legal representation that you must have to try to avoid having your freedom taken away. The fact that somebody understands, we're a country where you're supposed to be innocent until proven guilty, but you can even see in the questions, the bias that there is against people who are simply charged with crimes. Many, many innocent people come before the courts, and already she's being critiqued simply for being basically a public defender.

And that tells you something about the mindset that we've generally had in the United States towards people who are charged with crimes, much less people who are guilty with crimes. And every single person, whether they're guilty of a crime or not, deserves to be to be treated with dignity in our judicial system. What we've seen is that she's someone who is a very, very careful judge who evaluates every single thing from every single side, from every single person that's put arguments before her. And she makes a well-reasoned decision based upon that. Someone who's come in maybe with a sense that people aren't innocent before they are proven guilty, might not bring the same care and the same neutrality.

I also think it's really important to have an African American woman on the bench because I think there are a bunch of Fourth Amendment cases that just do not jive with the experiences of African Americans. And as I wrote in my op-ed, one of them is, for example, how we think of what's even a consensual encounter. Police officers can approach you and ask for your I.D. They can ask your name, they can ask you all kinds of questions without any suspicion at all. And the court says so long as you feel free to walk away or end the encounter.

Well, I can't tell you of one African American person I know who would feel free to walk away from a police officer and an encounter, even when there's no suspicion, because many people are stopped under those very circumstances and ask questions. But it can be a death sentence for African Americans. And if you go back and you read some of the opinions, it's clear that never even entered into the mindset of some of the Supreme Court justices. It's not a dig against them, but it wasn't their lived reality. They didn't know people who were overpoliced, who were stopped while innocent. And I think that's the experience of many white people and this country.

But to have somebody who's going to bring a lens and say, well, maybe let's think about what does that mean? That's a legal fiction, the idea of a consensual encounter. And there are lots of other things, like the Whren decision. There are so many other decisions that are really problematic on the Fourth Amendment, and I think that it would be important to have somebody who's been a public defender bring that lens to these cases.