A New Supreme Court

people who took risks and broke the rules. But I have to start off this series by addressing the historic moment we're in right now. As a lawyer and a former witness at a Supreme Court confirmation hearing, I've been laser focused on President Biden's recent nomination. On February twenty fifth, I watched anxiously as he stood at the podium with Vice President Kamala Harris on one side and on the other Judge Katanji Brown Jackson. The announcement that was weeks,

actually centuries in the making finally became real. It's a first for our country and speaks to so much of my work and what I'm talking about on this podcast. The whole country will be watching as Judge Katanji Brown Jackson goes before the Senate Judiciary Committee. I'm very familiar with that committee. They're the same body that I stood in front of in nineteen ninety one when I testified about sexual harassment I experienced working at the Equal Employment

Opportunity Commission under Clarence Thomas. My name is Anita F. Hill, and I am a professor of law at the University of Oklahoma. Back then, the committee was made up entirely of white men, and the chair in nineteen ninety one with Senator Joe Biden, the same Joe Biden who's making history today as President. My nominee for the United States Supreme Court is Judge Katangi Jackson, who brings extraordinary qualifications, deep experience and intellect, and a rigorous tradicial record to

the Court. I wanted to have a conversation with someone who I know appreciates the significance of this moment, so I called up Mark Lamont Hill. He's a journal social critic and professor, and no, we're not related. We spoke a few days before Judge Jackson was announced as a nominee, which is why you won't hear us refer to her

in our conversation, but the larger conversation remains unchanged. Mark Lamont Hill and I set out to discuss what this moment means for justice, what it means for a representation, and the benefits to everyone of this historic nomination. Professor Anita Hill, it is so good to see you. It is so good to talk to you. This is a

big deal. Then you're certainly no stranger to big deals around Supreme Court nomination, so I know you understand how important it is, Oh absolutely, and I'm looking forward to the really positive things that can come out of this.

Nineteen was a moment where the Senate Judiciary Committee had an opportunity to listen to the voice of a credible black woman, and not only did they not do it, but their attitude seemed to reflect an inability to recognize a black woman as intellectual and capable and balanced and fair, etc. And so I'm wondering if they can't even do that at the level of a witness, if they're able to think about a black woman jurist, and now it's been thirty years, how do you think about the ability of

the Senate Judiciary Committee to even assess the qualification of a black woman for this job. Well, fortunately, the Senate Judiciary Committee has changed so it is much more diverse than it was thirty years ago. I think that there is so much to be gained from this nomination and the public discussion about our sense of justice in this country and the importance of the Supreme Court in representing

our sense of jobs death. The first place where the conversation about justice emerged was when President Biden said that he was going to honor his campaign trail commitment to choosing a black woman. And this is something that I think was left out of the public conversation to some extent, is that the decision to consciously select a black woman is not the first moment where there was a conscious intent to choose people. The hundreds of years where the

courts were all white male didn't happen by happenstance. It wasn't a meritocracy that somehow being interrupted. They were very intentionally not choosing Jewish people at one point, very intentionally not choosing black people, and then somehow the subtext keeps emerging, and that's one around qualification. Yeah, I think again that's a part of our history that we want to pretend to us on excess. Those judges are there, they have

been their constant. Spaker Mobley, who was on the Second Circuit, wanted a kid stout who was one of the first black woman appointed to a state supreme or back in the eighties, Paully Murray, who wrote Richard Nixon and laid out her resume and all her credentials for being on the Supreme Court, and told him that he should nominate her. And she was right, of course, I mean she's I mean, she was a brilliant legal theorist. But we have so

erased that history it is though we're invisible. In other words, Joe Biden isn't the first person to identify qualify black women. And this isn't the first generation of qualified Black women by any stretched. Every women for decades, and certainly it's not centuries who have been equally qualified and deserved a place on the court, they simply didn't have the opportunity.

I think that's an important piece to add, particularly against the backroom of this public outcry that that Joe Biden is suddenly going rogue and being selective or intentional about who he's selecting for Supreme Court, as if again for centuries that hadn't been qualified black women who were intentionally left to offabilities. My worst fear in this conversation is that we will resort to racist tropes, sexist tropes, and we are going to miss this opportunity to ask some

really important questions today. What are those questions? Well, I think we should be asking who's missing from positions of power and influence in our political systems, and that includes our judiciary. What do we do to step out of that? How do we imagine equality in the future. You know, we have been operating for a while from what I think is a nineteen sixty four version of equality, and it has worked very well, but it has not finished the job of creating equality. For one, what is the

nineteen sixty for context right? Because there were people who are saying, well, that sounds like a good idea. We didn't have access to public accommodations, we didn't have access to civil rights. We needed to be in places that wouldn't let us in. What's wrong with the nineteen sixty four vision or what's limiting about it? There's nothing wrong with it. In fact, I've benefited from it, so I would not say that there is anything wrong with it. But what we know is that we still have huge

disparities on many, many fronts. So we need to be thinking about if our goal is equality, what more can we do. We have been having challenges over the last few years, things like the Me Too movement and like Black Lives Matter, and I think at the core of those movements is a cry for new ways of thinking

about justice and equality. And so far we have people who are buying into the messages of those movements, but we haven't had the leadership that follows, and we haven't had any changes in the structures that are limiting our advances toward this new way of thinking about equality inclusively and broadly as fundamental to our democracy. When we come back, Mark Lamont Hill and I get into the question of

objectivity in judging and whether or not it's possible. You're listening to getting even my podcast about equality and what it takes to get there. I'm Anita Hill. A few days before Biden announced Katangi Brown Jackson as his pick for our next Supreme Court justice, I called up Mark Lamont Hill. We spoke about what it means to the country to have a black woman nominated to the highest court.

One of the things that will definitely come out of the conversation is whether the person can be impartial, and rather than simply proving that black women have the same capacity to be impartial as white men, or to make the case that everybody's impartial on some level, is this an opportunity or should we take this as an opportunity to reshape the language around impartiality and objectivity rather than to try and wedge ourselves into the framework that always

has the world looking at us like we're short. This is just like the questions about competence. They only come when you have a person of color, and they come up for the purpose not of finding the right person for the bench, but they come up to discredit thinking

yep and ideas in resistance to the status quo. And so I think we're at a moment where we know that if we are going to move us as a country to expand our thinking about the role that the law can play in creating a more just and equal society, then we have got to resist those old ways of eliminating people by simply saying they're not qualified or they can't be objective, assuming that there is one standard or

qualification or one standard of objectivity. You know, there's an interesting story about Constance Baker Motley, who I mean, she may have been considered, but she was certainly never nominated to be on the Supreme Court work. But she was

a judge in a case. It was an employment discrimination case, and what the council defending against the lawsuit asked was that Constance Baker Motley recuse herself, and this was in the papers that were submitted to the court, because her race and her gender would make her suspect and unable

to be objective in this case. I love her response because she said, if that is the standard we began to hold, then we must recognize that everybody on the bench is incapable of being objective, because everybody on the bench has both the quality of a race and agenda. But we only see that when we see people of color. Of course, she did not recuse herself, but I think she made the best argument. That is our best response.

When we start talking about the objectivity of black women, then we have to start talking about the objectivity of all of the white male judges and the black male judge. I mean, is anybody ever objective? You're pointing to something very interesting, right. That's beyond partisan politics, and that is a question of political imagination, of judicial imagination, the ability to take different approaches to the law, different traditions, different beliefs,

different worldviews, and to incorporate them into one's practice. These are things that aren't limited to the Democrats or the Republicans. This is about a worldview that comes across them both. And so diversifying the Supreme courtnel on some level allows us to push back against that trend. And it doesn't seem like we even realize many of us don't even

realize that that's a trend to push back against. One of the things that Ruth Bader Ginsburg did was it very often called out her colleagues for not understanding the experiences of women. We talk about the judicial imagination. Her imagination for what justice is is quite different from her colleagues,

and she was not afraid to say so. Yes. And this nomination and the way that it was announced was intentional challenge to the status quo, an opportunity for us to say, we need a judiciary that reflects the population that is going to come before it, that reflects ideas, new ideas based on different lived experiences in terms of deliberations and decision making, and even their new ideas or new experiences about the path to becoming a judge and what judging is and how it happens, and the value

that can be brought in where new ideas about how to define justice are allowed to be considered. It's an intersection again of gender and race, right because when Trump said I'm electing a woman, no one thought that he meant anything other than a white woman. When Reagan made the same determination, no one thought that he was considering

anything other than a white woman. And when Joe Biden says, well, I'm going to choose a black woman, I think it's that intersection that was just untenable for so many people.

And the wonderful thing about the moment is that we not only have a chance to look at intersectional bias against women of color, but in this case black women, we have a chance now to look at the intersectional value, the value that having lived experiences as both a female and a black person is really something that can contribute to the thinking that goes into judging and that goes into our definitions of justice today. And if we if we don't, if we don't see that as this opportunity.

If the Senate Judiciary Committee isn't asking questions about those two things, then there's a missed opportunity for the entire

American public. And the problem is they don't know what to ask, They don't even have the self awareness to ask those questions, and they didn't understand the thing that you're that you're speaking to now, which is it's not just a nice act of liberal generosity to diversify the court, but that there's some inherent value to diversity, that there's something that it's an added value to say this court

should look different. It offers differences in terms of what the judges talk about in their deliberations, what is the conversation like in their deliberations, And those conversations are driven by experiences. Even as I say that our thinking is not unilateral, I know very few black women who cannot tell you how race and gender, separately and combined have

impacted their life experiences. But we know that diversity in those kinds of conversations can lead for a richer understanding of what the law is and how it impacts people. And I'll go back to Santra Day O'Connor, who talked about how Justice Marshall influenced her thinking about the law and maybe that's how we got affirmative action, because she wrote the opinion and maybe she was influenced by listening

to just this Marshaw. But if you don't have someone bringing that to the conversation, not only do you not have a chance to change the outcome, you don't have a chance to change the reasoning. And judging is more than about outcomes. It's about the reasoning. It's about the explanations for the law and telling the people why decisions are made in the way that they are. And I think those need to be filled with experiences from multiple perspectives.

I have to ask you, what's the smoke clears and a black woman has been confirmed to the US Supreme Court, how will you given everything you've been through, everything you've witnessed, your entire set of experiences, how will you feel? I will be absolutely elated, absolutely elated. Now I typically think of myself as a glass half full, but one of the things that I want to be cautious about is that we don't start seeing this as well. We have one.

That's it. That's all wherever you know the black women, please check the box. This is not about checking the box. This is about a judiciary that represents our country and the best in our country and the values of equal protection under the law and justice being blind. And so I will relish in that moment, and then I will hopefully suggest some other ways that we can get some of the work done that needs to be done. I like that attitude, and that's that's what it means to

be black in this country. In so many ways, we celebrate the victories that we struggle for what we understand that the work is undone. It's understand that you get to keep fighting. That's right, absolutely, because it was a pleasure, pleasure, pleasure talking to you. Thanks so much for let me hang out with you. Oh listen, this was great. I couldn't have asked for a better partner to have this conversation.

Of course, Mark Lamont Hill and I don't know what the outcome of this historic confirmation hearing will be, but we have hopes about how the process will go and hopes that we can learn from the mistakes made throughout the history of the Senate and the Court. We can't shy away from difficult questions about what equality under the law means, what it really looks like, and more importantly, how diversity on our courts could change people's lives and

our country. On the next episode of Getting Even, you're going to hear new revelations about a familiar piece of history. When you heard Mark and I refer to in our conversation the nineteen ninety one Supreme Court nomination hearing for Clarence Thomas. It was not unusual for Clarence to act that way with people and especially black women at the commission.

Like I said before, he was like a fox in a hanhouse, and I wanted to make the committee aware of the fact that you were not lying to them or making up statements, that this, in fact is what was happening at the EOC. Later in the season, I'll be speaking with w Kamal Bell, Kimberly Crenshaw, Nicole Hannah Jones, Misty Copeland, and many others about the realities that keep us up at night and what it takes to get even. What we're looking for is outcomes. We want results, measurable

outcomes in the way that people live every day. Getting Even is a production of pushkin in this Streets and is written and hosted by me Anita Hill. It is produced by Molaborg and Brittany Brown. Our editor is Sarah Kramer, our engineer is Amanda kay Wang, and our showrunner is Sasha Matthias. Luis Gara composed original music for the show. Special thanks to Vicki Merrick for her help with this episode. Our executive producers are Mia Lobel and le tal Malaud.

Our director of Development is Justine Lane. At Pushkin thanks to Heather Fane, Carly Migliori, Jason Gambrel, Julia Barton, John Schnars, and Jacob Weisberg. You can find me on Twitter at Anita Hill and on Facebook at Anita Hill. You can find Pushkin on all social platforms at pushkin Pods, and you can sign up for our newsletter at pushkin dot Fm. If you love this show and others from Pushkin Industries,

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