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March 9, 2016

Can readers help discount my fears that sexism and racism account, at least in some small part, for why conservatives are belittling the intellect of Judge Ketanji Brown Jackson?

JudgeKJacksonNewProfileThe question in the title of this post is my genuine and sincere effort to try to feel better about comments over at Crime & Consequences and other commentary from conservative pundits about my favorite SCOTUS short-lister, US District Judge Ketanji Brown Jackson.  For the record, as I have previously noted, my affinity for Judge Brown Jackson is surely influenced by her prior service as a federal public defender and as a Vice-Chair of the US Sentencing Commission (during which time I had the opportunity to once dine with her at a sentencing conference).  That personal bias notwithstanding, everything I can find "on paper" about Judge Brown Jackson suggests to me she is an intellectual super-star, not an "intellectual lightweight" or a dim light as she has been described by some conservative commentators.

The "on paper" credentials to which I refer are detailed here, and here is my own brief summary:  Judge Brown Jackson graduated magna cum laude from Harvard College and cum laude (and was on the law review) at Harvard Law School.  She clerked for two highly regarded federal judges at the district (Judge Saris) and circuit (Judge Selya) courts in Boston and then for Supreme Court Justice Breyer. She thereafter worked in prominent and challenging positions in public practice (as a federal public defender), in private practice (at the firm Morrison & Foerster) and in the most important judicial-branch government agency (as Vice-Chair of USSC).  She has now been a federal district judge for three years after a unanimous confirmation vote at which, quite notably, she was supported by the current GOP Speaker of the House of Representatives who stated expressly that his "praise for Ketanji's intellect, for her character, for her integrity, it is unequivocal."

Now, given that Judge Brown Jackson is only 45 years old and has been a district judge for just three years, I can certainly see an objective basis for asserting that she is too young and/or does not yet have enough judicial experience to be an ideal SCOTUS nominee.  (That said, she is older, has been a federal judge twice as long, and has a more impressive paper record than Clarence Thomas circa 1991 when Prez GHW Bush nominated him to replace Justice Thurgood Marshall.)  But give her seemingly stellar paper record, I have a very hard time finding an objective basis for labelling Judge Brown Jackson as an "intellectual lightweight" or a dim light.  And because she is the only woman of color on the various "SCOTUS short lists" that have made the rounds, I also have a very hard time not jumping to the (misguided?) conclusion that sexism and racism account, at least in some small part, for why conservatives are now belittling the intellect of Judge Ketanji Brown Jackson.

Ergo the question in the title of this post: I would really like to hear (anonymously if needed) from folks who know more about Judge Brown Jackson's talents, preferably as a result of working directly with her professionally in the last few decades.  Ed Whelan in this recent National Review post stated that "any reporter would quickly discover [that Judge Brown Jackson] is not regarded by her colleagues or the bar as among the leading lights of the federal district court in D.C."  Though I am not a reporter, I am eager to try to find out ASAP some bases for this statement.  Indeed, as suggested by the title of this post, I am especially eager to have the help of readers to discount my immediate concerns that sexism and racism account, at least in some small part, for why conservatives are seemingly so quick to belittle the intellect of Judge Ketanji Brown Jackson.

Prior related posts on new SCOTUS nominee possibilities:

March 9, 2016 at 11:53 AM | Permalink

Comments

At the time, I thought Thomas was not experienced enough to be a SCOTUS justice. And, evenhandedly, can see an argument for that in this case. And, a person you interacted with over at C&C admits that he would have been in effect disqualified too.

https://www.crimeandconsequences.com/crimblog/2016/03/judge-kelly-difficult-to-oppos.html#comments

But, "intellectual lightweight" is overkill. Then again so is simply refusing to have hearings instead of simply do so & then voting the person down on an up/down vote.

I am inclined to think this is more a matter of ideological opposition (yes, honestly, I think some of these people would gladly have supported Thomas in '91) than sexism/racism.

Posted by: Joe | Mar 9, 2016 12:59:13 PM

It's "Ed Whelan" btw.

Note btw "Paul" tosses out the "intellectual lightweight" label in a comment mostly about not liking her ideological positions & her being a public defender. Republicans are public defenders too, right? Plus, I would think helping defendants (Jane Kelly was also a victim of crime, so might be deemed to have that perspective going for her) would not be a negative. After all, I'm told Scalia was very pro-defendant and that is pointed out as a good thing by various people honoring his record.

Posted by: Joe | Mar 9, 2016 1:04:38 PM

You have got it backwards, Doug. It is not racism that motivates such comments but arrogance. Bill, and Ken, and all the rest are convinced that the Republican position is ipso facto the intellectually superior position ergo anyone who disagrees with their policy or legal positions must be intellectually inferior.

Posted by: Daniel | Mar 9, 2016 1:38:34 PM

I should add that liberals also engage in this type of tautological argument. Only with liberals it is their belief that liberalism is the morally superior position and therefore anyone who disagrees with their policy positions is a cruel, hating, racist knuckle dragger.

Posted by: Daniel | Mar 9, 2016 1:43:44 PM

I think the fact that it's a district court Judge and she's been a federal Judge three years are the biggest concerns. I'm not saying the criticisms are true, but I those immediately came to mind. Comparisons to Clarence Thomas are unhelpful, since he was routinely criticized for being unqualified (as recently as 2008, iirc, when Senator Obama made the claim that he wouldn't have voted for him because of that reason).

Posted by: Erik M | Mar 9, 2016 1:45:01 PM

Can you "train" an individual to meet their full potential by claiming that you need a minimum of x years of experience as a federal district judge? No! You can train a dog but not really a thinking, independent person. Whenever I interviewed a candidate for a job who had "x" years of experience, I would ask them if that was a good thing or a bad thing and/or, how many of the "x" years were good experience vs. bad experience?

I would rather have someone who has experienced the broadest range of human situations as possible for the USSC than a narrowly trained narcissist such as those you meet on many a federal bench and over at that other blog.

Anyone who would use the term "pro-criminal" because she practiced as a public defender should be disbarred based on emotional maturity!

Posted by: albeed | Mar 9, 2016 3:27:45 PM

As long as the appointments remain lifetime, NO candidate under 50 should be nominated. This standard applies to both parties.

I prefer appointments for a term certain-10-20 years sounds about right.

The risk of getting "stuck" for 40 years with an appointment who doesn't measure up for is not worth taking.

Posted by: mjs | Mar 9, 2016 4:53:39 PM

BTW, this is an intriguing choice so appreciate Prof. Berman rooting for her.

FWIW (a bit more than anything I say):

Nina Totenberg ‏@NinaTotenberg 12h12 hours ago

POTUS interviews #SCOTUS candidates. Top tier likely Garland, Srinivasan and Watford


Garland is a totally bland choice you toss out there if Republicans were going to play ball. If so, you'd probably get him confirmed. Watford was controversial when nominated one level down. Seems like a goner but might help for those who see this as a political issue (e.g., he's a black judge, this will help the Democratic base in November). Srinivasan seems the best bet of the three. This being the assumption at the beginning, it is a rather boring choice. But, Sotomayor and Kagan weren't big surprises either.

Posted by: Joe | Mar 9, 2016 6:02:51 PM

¿ Too young and not enough judicial experience ?

Bovine feces •

William O. Douglas was age 40 with 0 judicial experience when he was sworn in •

Posted by: Docile Jim Brady „ the Nemo Me ♠ Impune Lacessit ♂ in Oregon ‼ | Mar 10, 2016 6:29:35 AM

Hmmmm. Doug, I don't recall you wondering aloud whether race was an issue when Harry Reid criticized Justice Thomas' ability . . . .

I don't recall you worried about Sotomayor's linking of ethnicity and quality of judging with her wise Latina comment.

Posted by: federalist | Mar 10, 2016 9:47:14 AM

I do think race plays a HUGE role in criticisms of Justice Thomas, and I have long though criticisms of his intellect are deeply unfair and often reflect structural racism. And I think Sotomayor's point always was that minorities, because they have a better feel and more experience with historic and structural racism can and will bring distinctly and better informed insights to bear on this front. Just as I would expect parent to more personally understand the issues in a case about parenting, I expect a minority to more personally understand the issues in a case about minorities.

This is one of many reasons I think Juatice Thomas is a uniquely important member of SCOTUS, and also a reason I am rooting for Obama to nominate another minority and another woman so that the Justices more fully reflect the realities of modern America. It is also why I am especially troubled by the effort to dismiss the only woman of color on the reported Obama SCOTUS short list as a lightweight.

Posted by: Doug B. | Mar 10, 2016 10:08:52 AM

Doug, you're dissembling--this is the first time you've said word one about Thomas (AFAIK)--and you don't note that the criticism of Thomas also probably has the ugly component of him not being real.

As for Sotomayor's point--that's weak too--first of all, that's not what she said--she didn't limit it to those cases, and why would you expect that her judging would necessarily be better--in fact, her stridency suggests otherwise--i.e., that she cannot be neutral (e.g., Buck v. Thaler).


And if she is a lightweight, shouldn't the chips fall where they may?

Posted by: federalist | Mar 10, 2016 11:48:54 AM

1. I generally think criticisms of most folks --- judges and non-judges --- are unfair, especially when they are politically motivated. I would need to start another blog if you think I have some kind of an obligation to highlight all the criticisms I have, especially concerning just about everything that comes out of the mouth of Harry Reid. And, for the record, I think a lot of criticisms of Justice Scalia, both when he was alive and now, have been off-base, too. Long story short, I think lots of things said to criticize others' is badly distorted by politics and lots of other factors.

2. Sotomayor said at her confirmation hearing that she used a poor choice of words when trying to inspire other minority lawyers. Given the tendency of minority lawyers to be called "a lightweight" for few apparent reasons, I can hardly get too tough on her for seeing the need to being indelicate in her use of words this way. And, perhaps more to the point, I am never confident anyone can truly be "neutral" in all respect in all cases because of how experiences shape understanding, and I thus fear claims about the importance of neutrality to be often an attempt to cover a deeper bias.

3. Can you give any basis for calling Judge Ketanji Brown-Jackson a lightweight?

Posted by: Doug B. | Mar 10, 2016 3:58:02 PM

@Doug.

A black woman would put two black people on SCOTUS. I don't believe in quotas but your comment above about "reflecting realities of modern America" implies you do. So the reality of modern America is that blacks make up only 12% of the population. Two black justices would make up 22% of the courts members. That is in fact not reflective of modern America, it would make blacks drastically over-represented.

If you really did think that SCOTUS needed to reflect the realities of modern America you would be advocating for a woman, sure, but not a black woman.

Posted by: Daniel | Mar 10, 2016 4:59:23 PM

Doug--once again you dissemble and pivot--you made the charge that "conservatives" were criticizing Judge Brown Jackson due to her race--an ugly charge. Now you lump all that in with "well everyone gets criticized and it's all political", and gee I wouldn't have time to comment every time a judge gets criticized--but that's not what I asked you about--I asked you about why you said nothing about the tinged commentary by elected officials about Clarence Thomas. Weak.

What tendency is there to call minority lawyers lightweight--do you have any evidence or argument there--and wouldn't it have to be illegitimate---Ronnie White is a lightweight---tell me I'm wrong, since he flagged an easy bar and he apparently doesn't know about invited error. And, so let me get this straight, you will assert, with no proof, that some criticism of Judge Brown Jackson is racially tinged, but when a Supreme Court nominee's words actually state that minority judges are better than white ones, you won't be too hard on her. And your response on neutrality completely undercuts your earlier argument--you posited earlier that the minority experience helps in cases involving racism etc.--but if that experience causes a lack of neutrality, then that makes the judging worse not better--judges are supposed to have neutrality--and then you say that can be a cover for bias. Oh boy.

As for the basis of calling Brown Jackson a lightweight, well, I don't know her, and I haven't pulled any of her cases.

Posted by: federalist | Mar 10, 2016 6:41:22 PM

Sadly, the word "Constitution" does not come up on any word search with regard to her judicial history. I will not recommend any justice who does not base his or her judicial philosophy on constitutional authority. If they don't base their decisions on the Constitution, then the Constitution is useless, as is our republic. Age, gender, race, and favorite type of candy bar notwithsandking.

Posted by: Eric Knight | Mar 11, 2016 9:34:19 AM

Daniel: if there was another highly-credentialed woman of color on the short list (e.g., an Asian woman), she might well be my first choice for diversity reasons because I would like all of our most powerful institutions to "more fully reflect the realities of modern America." In a court with nine members it will always be impossible, of course, to perfectly reflect those demographic realities, and right now I am generally more concerned with religious and age and geographic distortions than race ones (although, as a father of two girls, gender issues really move me, and I have come to view Judge Kelly as not as good a choice as Judge Brown Jackson for an array of diversity and related reasons).

federalist: I did not make "you made the charge that "conservatives" were criticizing Judge Brown Jackson due to her race." Rather, I asked for help in understanding the basis for calling her a "lightweight" providing this context:

"Given her seemingly stellar paper record, I have a very hard time finding an objective basis for labelling Judge Brown Jackson as an "intellectual lightweight" or a dim light. And because she is the only woman of color on the various "SCOTUS short lists" that have made the rounds, I also have a very hard time not jumping to the (misguided?) conclusion that sexism and racism account, at least in some small part, for why conservatives are now belittling the intellect of Judge Ketanji Brown Jackson."

In response to your question, I do think a lot of criticisms of the intellect of Clarence Thomas are due to his race. Indeed, one reason I bring this up now is because Justice Thomas stands as a great example (as does Prez Obama) of the tendency of some many elites to belittle the intellect of people of color influenced, probably unconsciously in many cases, by their background.

More to the point, I have not "asserted, with no proof, that some criticism of Judge Brown Jackson is racially tinged," but I have asked for some proof to support the statement so that I no longer worry that it is. (A record of failing the bar would be good, and that is why your Ronnie White example shows there can be a paper record to justify the label.) So now you have spent a lot of time talking about my concerns without seeking to resolve them with evidence to justify the label she is a lightweight. Neither has Ed Whelan, though he has a post noting interestingly that she "served as an advisory school board member for the Montrose Christian School in Rockville, Maryland, in 2010 and 2011 [which is] a ministry of the Montrose Baptist Church." I assume that fact is not offered to prove she is a dim light, but maybe it is religion rather than race or gender at play here.

In any event, I am still waiting, and waiting, and waiting for someone to provide any proof to support the lightweight assertion. I look forward to seeing if you (or Ed Whelan or Bill Otis) do have a basis for this label in something other than what we do know about her already from objective evidence (namely a sterling paper record that would seem pretty darn hard to assemble as a lightweight).

Posted by: Doug B. | Mar 11, 2016 2:58:57 PM

Doug---so Ronnie White is a "lightweight"? Think that race didn't have something to do with him getting on the federal bench?

f"ederalist: I did not make "you made the charge that "conservatives" were criticizing Judge Brown Jackson due to her race." Rather, I asked for help in understanding the basis for calling her a "lightweight" providing this context:"

Well, (a) send an email to Whelan and (b) you said: "because she is the only woman of color on the various "SCOTUS short lists" that have made the rounds, I also have a very hard time not jumping to the (misguided?) conclusion that sexism and racism account, at least in some small part, for why conservatives are now belittling the intellect of Judge Ketanji Brown Jackson." If that's not a charge of racism, I don't know what is.


As for Sotomayor, I find it telling that you'll accept out and out linking of ethnicity to quality of judging and even defend it, yet cast aspersions on people you don't even know. As for Barack Obama's intelligence---I don't think people who don't know the difference between liability insurance and casualty insurance in the automobile context are really all that bright. And I will note that Obama, the self-styled Con Law scholar, forgot about Zavydas v. Davis and got some people killed at the hands of a released Haitian criminal. And plus, Doug, take a look at Obama's letter as President of your law review trying to defend race preferences in getting on law review---the letter was riddled with errors in logic and grammar. What do you think of that letter?

Posted by: federalist | Mar 11, 2016 8:39:56 PM

Game. Set. Match.

Posted by: federalist | Mar 12, 2016 11:44:29 AM

Provide a link to the Obama letter, federalist, and I will give you my opinion. Meanwhile, the point of my post here was an effort to see if ANYONE --- Whelan, Otis, paul at C&C or you or anyone else --- could point to any shred of objective evidence to support the assertion that Judge Brown Jackson is an "intellectual lightweight" or a dim light. Days later, I am still waiting, while you now seem far more interested in complaining about the intellect of two other prominent federal officials of color.

As for Ronnie White, I do not know if he is a "lightweight" or not. People whom I intellectually respect, e.g., Kathleen Sullivan, have failed the bar. But, more to the point, if someone fails the bar, that at least provides a bit of objective basis for calling that person an lightweight. That was the point of my inquiry in this post: when someone has a stellar paper record --- one arguably more impressive than many of the current Justices and most of those on the current "short list" --- I struggle to understand why and how a number of conservative folks label such a person and "intellectual lightweight" or a dim light.

To be very clear, I quite sincerely hope there is an objective basis for the mentioned belittling of Judge Brown Jackson. But, again, I am waiting and waiting for it from anyone. And your eagerness, federalist, to now belittle the intelligence of other prominent persons of color does not help me feel more confident/comfrtable about the basis for others to belittle Judge Brown Jackson. I hope you can understand that, though perhaps I should just suggest your belittling flows not from any other source than jealousy, as these folks all have more impressive paper record and positions than you or I will ever have.

Posted by: Doug B. | Mar 12, 2016 4:20:48 PM

Doug, Ronnie White was on academic probation in law school and failed the bar. His opinions while on the Mo Supreme Court left a lot to be desired. So why did Barack Obama appoint him?

Here's Obama's letter:

https://hlrecord.org/2008/10/record-retrospective-obama-on-affirmative-action/

The first sentence has a grammatical error.

"And your eagerness, federalist, to now belittle the intelligence of other prominent persons of color does not help me feel more confident/comfrtable about the basis for others to belittle Judge Brown Jackson. I hope you can understand that, though perhaps I should just suggest your belittling flows not from any other source than jealousy, as these folks all have more impressive paper record and positions than you or I will ever have."

I haven't said word one about Judge Brown Jackson---so you should take that back and apologize. And if you'll recall, my harshest words are often for judges of the white male persuasion.

Posted by: federalist | Mar 12, 2016 6:08:04 PM

1. You would have to ask Obama why he appointed Ronnie White, though I would speculate that lots of Judge White's personal and political backstory was consequential (e.g., he was a community college product, he was first nominated by Bill Clinton back in the 1990s and was rejected by GOP Senators). Moreover, Prez Obama has long expressed a committment to bringing more diversity to the federal courts, and I am sure that also played a role.

2. The Obama letter is not a great piece of writing, though it mostly reflects a flaw in a lot of my own writing: sentences that are too long and try to say too much with nuance.

3. I do not think I said in my comment that you said anything bad about Judge Brown Jackson. I said (with key words emphasized): "And your eagerness, federalist, to now belittle the intelligence of OTHER prominent persons of color [Judge White, Justice Sotomayor, Prez Obama] does not help me feel more confident/comfortable about the basis for OTHERS to belittle Judge Brown Jackson." I hope upon re-reading you see that I did not assert you said something bad about Judge Brown Jackson. What I continue to assert is that nobody has yet pointed to anything tangible concerning Judge Brown Jackson that can help me see a legitimate basis for calling her an "intellectual lightweight" or a dim light.

And, to repeat, that was the whole point of this post: I hope when one person (in this case folks at C&C and Ed Whelan) belittles the intelligence of an impressive-looking prominent woman of color that there is some sound basis for their comments. I am still hoping to find them, though I do not demand or expect you, federalist, to find these bases because you have not done any belittling of Judge Brown Jackson. And kudos to you for having a foundation for your claims, like all good lawyers should.

Posted by: Doug B. | Mar 12, 2016 6:35:44 PM

You are correct Doug, but you still owe me an apology--your insinuation about my criticisms of persons of color is rank. I ALWAYS back up assertions with evidence. With Obama, it's a poorly written letter riddled with grammatical errors and an idiotic statement that showed that he had no idea about the difference between liability insurance and casualty insurance. With Sotomayor, it's her work product. With Ronnie White, it's his cases, his academic record and bar failure (Missouri had a 92% pass rate when he took it.) So, what, I cannot point these things out without being called racist? My posts filet any number of judges, many of whom are of the white male persuasion.

And forgive me, Doug, but how am I supposed to think that HLS was this great education when it produced Obama, who, as President of the Law Review, penned such a lousy op-ed? Or, when this same Harvard lawyer who taught Con Law apparently forgot about Zavydas v. Davis and got people killed--am I supposed to be impressed simply with a law school credential?

Your dissembling about Ronnie White is funny--basically Obama appointed a lightweight--so why should we think any of his other judges are any good?

Posted by: federalist | Mar 12, 2016 6:53:36 PM

I have not called you a racist, nor do I think you are one, federalist. So if you think that was my insinuation, you are wrong and I am sorry I wrote something that could even suggest as much. And, rightly so, you do call a lot of judges of all racial and ethnic backgrounds dim, including Reagan-appointee Justice Kennedy. (But would you say because Reagan appointed Justice Kennedy we should question all of his judicial appointments?)

To return to the whole point of this thread, I am not asserting you or anyone else should be impressed with simply where a lawyer went to law school. But when someone has a remarkable paper record, as does Judge Brown Jackson, and then gets called dim and an intellectual lightweight, I want to understand the basis for that criticism. You did not level that criticism, federalist, so I am not faulting you. But absent any evidence of any valid reason to belittle the intellect of a woman of color, I cannot help but wonder if some not valid reasons contribute, at least in some way, to this labeling.

Posted by: Doug B. | Mar 13, 2016 9:55:14 AM

That's an interesting backtrack--after accusing me of being "eager[] to [] belittle" prominent minorities' intellect, you say I am wrong. I don't know how else to read that, Doug, especially when, upthread, you linked it to others' criticism of Judge Jackson Brown. And you maintain that non-valid reasons might be a reason for others' criticism of Judge Jackson Brown--not hard to see what you are getting at. Interesting--criticize a minority judge, and you get a law prof questioning whether you have racial bias--I am sure Ed Whelan is pleased as punch.

And surely, Doug, you realize the fundamental difference between Obama's appointment of White since White's limitations were well-known at the time of appointment.

I guess I should count it as a win that an HLS Law School grad actually criticized Obama's op-ed penned while law review president, littered as it was with grammatical errors and fuzzy thinking. I guess he was too busy taking Austrian lessons back then or learning that the Americans liberated Auschwitz.

Posted by: federalist | Mar 13, 2016 12:55:05 PM

federalist, let me try to be fully candid and clear about my views and what I have meant by prior statements:

1. I think there are very few people whom I would label "racists" --- meaning people who consciously and consistently think persons of one race are generally inferior to persons of another race.

2. I think nearly everyone --- myself included --- is subject to biased thinking based in personal experiences and many conscious and unconscious mental factors. For example, I tend to think that men judge women's talents based on their looks more than they judge men's talents based on their looks. Perhaps this view reflects my own unconscious sexist biases against men, though it also reflects my own experiences hearing men discuss women in a variety of professional settings. It also reflects my deep concerns, as the father of two young women, that my daughter's professional talents may sometimes be eclipsed by how men judge their looks.

3. A lot of psychological evidence/studies show that we all harbor unconscious biases based in race and gender, and the same research suggests that identifying these biases helps reduce their impact.

4. With all that background, when I see Judge Brown Jackson subject to criticism about her intellect despite a paper record completely to the contrary, I worry and wonder about the basis for this criticism. In expressing my wonder and worry in this post, I am not questioning whether others have racial biases --- as stated above, for me it is a given that we all have unconscious biases based in race and gender --- rather I am questioning whether those persons expressing criticism of Judge Brown Jackson can and will be able to point to some objective evidence to support their criticisms of her intellect.

5. I am sorry to have in any way suggested I think you are biased any more than I would concede that I am biased and any more than I think we all harbor many unconscious biases. Even more critically, I hope you appreciate why I think it is important to question and explore whether, when and how an array of unconscious biases may impact our thinking about a variety of issues/people. Indeed, I think we disserve continued positive evolution on these fronts by being afraid to discuss candidly these important issues which, understandably, are fraught with concerns about the application of pernicious labels.

Posted by: Doug B. | Mar 13, 2016 4:56:57 PM

Doug, you are backtracking---when you talk about "eagerness" to criticize minorities, you are not talking about unconscious bias--to suggest otherwise is disingenuous. And it is interesting to juxtapose your deep fears of the effect of unconscious bias on things with your pooh-poohing of Sotomayor's express linking of ethnicity and judicial decisionmaking. My sense is that you subscribe to the typical liberal double standard--it's ok for Sotomayor to posit that white males ain't as good as she is--but heaven forbid someone ask hard questions about Sotomayor's intellectual capability (see, e.g., her Buck v. Thaler opinion) or point out that her prepared statement on Ricci (the Ricci dissent would have affirmed the Second Circuit) is just flat out wrong. The beauty, in my mind, of just looking at what is written or said is that "unconscious bias" or what have you, is pretty much not an issue.

Of course, you won't really engage there--but you'll happily smear Ed Whelan and then hide behind a "we all have bias" nonsense answer.

Posted by: federalist | Mar 13, 2016 5:36:08 PM

Saw an interesting old film -- "Ann Carver's Profession" ... Fay Wray; the profession being being a lawyer. Her first big case involved a breach of contract suit turning on the woman in question being "colored." Never heard of it until I saw it listed.

Does Prof. Berman have a favorite among the supposed top three?

Posted by: Joe | Mar 13, 2016 7:16:31 PM

1. I am not smearing Ed Whelan, federalist. I am asking any and everyone to help me identify a basis for what some have written that belittles the intellect of Judge Ketanji Brown Jackson without any identifiable valid basis. Lacking then, and still now nearly a week later, any identifiable valid basis for this criticism (which is contrary to her stellar paper record), I remain worried that unconscious bias accounts, at least in some small part, for his and others' statements. I am not hiding behind anything, I am explaining (to you yet again) what this post was about.

2. I have not criticized you for asking hard questions about Sotomayor's intellectual capability (though I do find tiresome you repeated reference to two items in a paper record hundreds of items long). Rather, you are criticizing me for not attacking the people you enjoy attacking like Harry Reid and Justice Sotomayor.

Here, then, is our big difference in personality: I am trying to understand the basis for others' personal attack on Judge Ketanji Brown Jackson's intellect, whereas you are eager to attack others and then to criticize me for not likewise being eager to attack others. But I generally think it impolite to attack others absent having a very good reason/basis for doing so --- "those in glass houses...." And I do not consider asking a hard/pointed question about the basis for another's attack on Judge Brown Jackson's intellect to be a smear or an attack; rather it is an expression of my concerns. And, disappointingly, neither you nor anyone else to my knowledge has yet been able to directly address or alleviate my concerns.

Posted by: Doug B. | Mar 14, 2016 6:49:40 PM

Doug, here is what you wrote: "And your eagerness, federalist, to now belittle the intelligence of other prominent persons of color does not help me feel more confident/comfortable about the basis for others to belittle Judge Brown Jackson." How you can deny this is a veiled accusation of racially charged commentary is beyond me--it's obvious what these words are designed to do.

As for Ed Whelan, you intone: "Ed Whelan in this recent National Review post stated that "any reporter would quickly discover [that Judge Brown Jackson] is not regarded by her colleagues or the bar as among the leading lights of the federal district court in D.C." Though I am not a reporter, I am eager to try to find out ASAP some bases for this statement. Indeed, as suggested by the title of this post, I am especially eager to have the help of readers to discount my immediate concerns that sexism and racism account, at least in some small part, for why conservatives are seemingly so quick to belittle the intellect of Judge Ketanji Brown Jackson."

You mention racism/sexism, and then say later you're not making the charge. Come on, Doug.

Maybe she's brilliant (sorry, but "cum laude" ain't all that); maybe she's a lightweight. And I pull more things on Sotomayor than two things---the speedy trial dissent she had a couple Terms ago was laughably bad--the Pinholster oral argument, her response on term limits . . . . the "wise [sic] Latina" comment. The list goes on and on.

Posted by: federalist | Mar 15, 2016 9:41:38 AM

I do not at all deny, federalist, that I am suggesting that you and Ed Whelan and other conservatives and likely lots of other folks are, at least in some small part, subject to unconscious biases that make you more eager and more confident questioning the intellect of women of color. Indeed, this is the whole point of this post and follow-up discussion: to unearth and spotlight the notable 2016 reality that, without pointing to any objective evidence, a number of prominent folks were quick to, as a first reaction to the SCOTUS shortlist, belittle the intellect of the only woman of color on the list. And, a week later, I am still struggling to find a legitimate basis for this criticism of her intellect.

Notably, especially since you seem to want to showcase you are an equal opportunity critic, you did not say something in response like "I am concerned she might be a lightweight like Justice Kennedy who also only graduated cum laude from Harvard Law School." Or, "concern about a lightweight on the Court among conservatives are likely influenced by the disaster that was Chief Justice Warren Burger, who did not go to a top-flight law school."

But rather than mentioneding/discussing white men whom you (may or may not) think are intellectual lightweights, you write post after going after the only woman of color ever nominated and confirmed to serve on the US Supreme Court (and also the first Prez of color and one of his appointees whos is also a person of color).

To make sure you understand, none of this is meant to be an express or even implied statement that you or Ed Whelan or other conservatives or lots of other folks are "racists" or "sexists." I am NOT making the charge that you or Ed Whelan or others are consciously and consistently calling persons of one race/gender generally inferior to persons of another race/gender. But I am making the (controversial?) suggestion --- and I am eager to have you and others reflect on the suggestion --- that our white-male-dominated political and social structure makes it much, much easier for white men (myself included) to belittle the intellect of women of color WITHOUT ANY OBVIOUS OBJECTIVE BASIS to support this criticism.

I know this is a nuanced point, federalist, but I am confident you can get it. Maybe you cannot --- though I think it much more likely you understand all this, but are eager to attack me for making the suggestion that white male privilege is rearing its head here.

Posted by: Doug B. | Mar 15, 2016 10:39:37 AM

I get your point---what I am saying is that you started off with using "racism/sexism" and when called out, you backtrack to "unconscious bias". That's weak, and I think everyone reading it knows it.

So now, you're complaining about my harsh criticism of Sonia Sotomayor? Well, in this particular case, I am pointing it out because I am juxtaposing your laying "racism/sexism" at the foot of someone merely because he had the temerity to label Brown-Jackson a lightweight based on his understanding of what the DC bench/bar thinks with your easy acceptance of the Sotomayor's conscious statement. To analogize to the Bible--why do you see the speck in Whelan's eye but do not see the log in Sotomayor's? And, in fact, you defend her. But the statement is indefensible--so it must be pooh-poohed.

Deal with that. But you cannot--instead, you will smear Whelan all while claiming that you are not.

Posted by: federalist | Mar 15, 2016 11:05:29 AM

Fair points, federalist, and you are 100% right that I chose to use the terms "sexism and racism" in the title of this post as part of my effort to get more attention via the use of provocative terms. My hope was that, by using these terms (rather than say "unconscious bias") I would goad Ed Whelan and others labeling Brown-Jackson a lightweight into providing some substantiation for their labeling. Put another way, I used these loaded terms not to smear Whelan and others but to challenge them (and also to ensure they and others reflect on the possibility that white-male privilege is in full operation here).

To your credit, federalist, you took up this challenge, and usefully called me to account for why I do not challenge others in a similar way. This is a fair criticism, but a distraction and one that arguably prove my point because, as I will be quick to admit, I am also subject to a lot of white-male privilege biases and I am particularly concerned about the impact of that bias in the operation of our nation's leadership (and especially its impact on criminal justice reform). And especially as my daughters grow into women with still far too few professional role models, I am especially concerned about the (unconscious?) sexism I see in so many parts of our political and social system. Thus I am especially sensitive (i.e., biased) in my desire to call out males who question the talents of females. Throw race into the mix, and this gets me even more concerned.

I can deal with your points, but I hope you see my goal (like yours) is not to smear but to challenge. As is often the case, I am impressed by how you federalist respond to the challenge. Of particular note here is how your response to this challenge involves a lot more engagement than the multiple prominent folks who labeled Brown-Jackson a lightweight. You, federalist, are anything but a paper tiger, but for the others whom this post is about, they have been tellingly quiet.

Posted by: Doug B. | Mar 15, 2016 11:53:01 AM

Doug, I'd email Whelan if I were you. See what he says.

Posted by: federalist | Mar 15, 2016 12:36:03 PM

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