A year earlier, Constance Baker Motley, the first Black woman to serve as a federal judge, had her confirmation held up for seven months amid charges that she was a Communist sympathizer when she was younger. By the time of her nomination, she had become the most accomplished female litigator in the country. She had been hired by Justice Marshall at the NAACP Legal Defense Fund at a time when few firms would hire female lawyers, let alone Black female lawyers.
She had successfully litigated cases desegregating Clemson University, the University of Georgia and the University of Mississippi. She had represented the Rev. Dr. Martin Luther King Jr. in Albany, Ga. and Birmingham, Ala. She was the first Black woman lawyer to argue before the Supreme Court — winning nine of her 10 cases there. After leaving the Legal Defense Fund, she served in the New York State Senate and was the borough president of Manhattan.
And yet she faced a barrage of attempts to discredit her and her extensive experience. As shameful as these tactics were, they were revealing. Senator Eastland was not wrong about the threat constituted by Justice Marshall’s and Judge Motley’s elevations. The advancement of Black people into positions of power traditionally held by white people is a threat to white supremacy. It frustrates a narrative about merit, threatens the expectation of unlimited control and power and opens the door to see things through a different lens.
When that Black person is one who has fought for racial justice or who unapologetically brings experiences and perspectives to the table that have the potential to interrupt prevailing approaches to how the law is understood and applied, it opens a portal to see aspects of our society that are all too often beyond the range of vision of those in power. Reflecting on what Marshall brought to the conference on the court, Justice Byron White wrote, “He characteristically would tell us things that we knew but would rather forget; and he told us much that we did not know due to the limitations of our own experience.”
That is why, even though Judge Jackson’s confirmation is unlikely to change the outcome of issues before the court, firmly in the grip of its conservative majority of six, she has the potential to widen the perspective that is brought to how these issues are debated and discussed at the court’s conference. This is how change begins — by destabilizing comfortable narratives, with the inclusion of those who have not been seen. Thus, Judge Jackson, a highly respected judge whose record the NAACP Legal Defense Fund is continuing to review, but who can hardly be described as radical, has already been accused of being a tool of the left wing and her two and a half years of noble service as a public defender as evidence of her being soft on crime.
These attacks by her opposition constitute a shrewd recognition that even a judge without the kind of civil rights pedigree of Justice Marshall or Judge Motley has the potential to disrupt what might be seen as a clear path to dismantling longstanding civil rights and criminal justice protections. And we have seen the impact of such disruption. Justice Sotomayor was a prosecutor before becoming a judge. But her voice has emerged as a powerful and riveting counterpoint to the conservative majority. Her dissents sting. And they are meant to.
Every chink in the armor of racial and gender exclusion produces outsize opposition precisely because of its potential to destabilize existing norms and systems. Judge Jackson surely recognized this when she honored Judge Motley in last week’s news conference announcing her nomination, when she stated that she shares Judge Motley’s commitment to equal justice under law. There will be inspiring moments, and there will be ugly and unwarranted attacks during Judge Jackson’s confirmation hearing. But she will be confirmed. And something on the court, and in our expectations of it, will change.