Judge Jackson and Critical Race Theory

The issue of critical race theory has been raised repeatedly in the Supreme Court confirmation hearings for Judge Ketanji Brown Jackson, specifically her passing mention of it in a 2015 speech on federal criminal sentencing.

On the second day of the hearings, Jackson said critical race theory has not been a part of any decisions she has made as a judge. She said her speech seven years ago was about “sentencing policy and all of the different academic disciplines that might relate to it.”

Critical race theory is the study of institutional racism as a means to better understand and address racial inequality. It has become a hot-button political issue among Republicans who oppose it being taught in public schools, though as Jackson noted in one of the hearings, it’s typically “an academic theory that’s at the law school level.”

The critical race theory issue was first raised by Republican Sen. Marsha Blackburn on the first day of the confirmation hearings, when Blackburn claimed that Jackson had “made clear that you believe judges must consider critical race theory when deciding how to sentence criminal defendants.”

“Is it your personal hidden agenda to incorporate critical race theory into our legal system?” Blackburn asked.

Jackson didn’t have an opportunity to respond, as that day was for opening statements, but she did when the issue was raised on the second day by Republican Sen. Ted Cruz.

Asked to define critical race theory, Jackson said, “Senator, my understanding is that critical race theory is — it is an academic theory that is about the ways in which race interacts with various institutions. It doesn’t come up in my work as a judge. It’s never something that I’ve studied or relied on, and it wouldn’t be something that I would rely on if I was on the Supreme Court.”

Cruz said “critical race theory frames all of society as a fundamental and intractable battle between — between the races. It views every conflict as a racial conflict.” He then asked Jackson, “Do you think that’s an accurate way of viewing society and the world we live in?”

“Senator, I don’t think so, but I’ve never studied critical race theory, and I’ve never used it,” Jackson responded. “It doesn’t come up in the work that I do as a judge.”

Cruz said he found that answer “curious” because “you gave a speech in April of 2015 at the University of Chicago in which you described the job you do as a judge.” Cruz then quoted parts of her speech in which she said, “[s]entencing is just plain interesting … because it melds together myriad types of law, criminal law, of course … constitutional law, critical race theory.”

“So you described in a speech to a law school what you were doing as critical race theory,” Cruz said. “And so I guess I would ask, what did you mean by that when you gave that speech?”

“With respect, senator, the quote that you are mentioning there was about sentencing policy,” Jackson said. “It was not about sentencing. I was talking about the policy determinations of bodies like the Sentencing Commission when they look at a laundry list of various academic subjects as they consider what the policy should be.”

Cruz, who sat in front of a large poster with an abbreviated version of Jackson’s quote, noted that Jackson was the vice chair of the U.S. Sentencing Commission. She served as vice chair of the commission from 2010 to 2014, a year prior to the speech in question. Cruz asked again, “what did you mean by what you were doing was critical race theory?”

“What I meant was that there are a number of, that that slide does not show the entire laundry list of different academic disciplines that I said relate to sentencing policy,” Jackson said. “But none of that relates to what I do as a judge.”

Jackson’s address to law students at the University of Chicago in April 2015 was titled, “Fairness in Federal Sentencing: An Examination.” A transcript of the speech was included in the materials on Jackson provided by the Senate Judiciary Committee. At the beginning of her 2015 address, Jackson, then serving as a U.S. District Court Judge in Washington, D.C., encouraged students to study criminal sentencing. Here is an excerpt from that speech, with the portion highlighted by Cruz in bold.

Jackson, April 3, 2015: In fact, if you were to take my class, you would hear me tout criminal sentencing as among the “don’t-miss” courses and subjects in law school, not just because I teach it, but because I, for one, believe that sentencing law and policy is one of the most important things that any budding lawyer — and for that matter, any seasoned practitioner — can study. Why is that? Well, there is the practical reason that, as you know, no fewer than 97% of the cases in the federal criminal justice system are now resolved by guilty pleas, so in the vast majority of criminal cases, sentencing is really all there is.

But even beyond that, learning about sentencing is important for all lawyers, even if criminal law is not your thing, because, at bottom, the sentencing of criminal offenders is the authorized exercise of the power of the government to subjugate the free will of individuals-which in and of itself has enormous
implications in a society in which the government derives its power from the will of the people. Dostoevsky put it this way: “you can judge a society by how well it treats its prisoners.”

So, as I see it, becoming well-versed in how our government exercises its power over people who breach its commandments is essential to sustaining our very democracy.

I also try to convince my students that sentencing is just plain interesting on an intellectual level, in part because it melds together myriad types of law — criminal law, of course, but also administrative law, constitutional law, critical race theory, negotiations, and to some extent, even contracts. And if that’s not enough to prove to them that sentencing is a subject is worth studying, I point out that sentencing policy implicates and intersects with various other intellectual disciplines as well, including philosophy, psychology, history, statistics, economics, and politics.

It was her only reference to critical race theory in her speech.

Later in the confirmation hearing, Democratic Sen. Cory Booker said he listened to Jackson’s speech and said to Jackson: “You were just listing a list of things that people could say touched the law.” He added, “They weren’t your philosophies at all.”

“Correct, senator,” Jackson said. “And that speech was not related to what I do as a judge. That was talking about sentencing policy and all of the different academic disciplines that might relate to it.”

Democratic Sen. Chris Coons asked Jackson, “[I]n your nine years on the bench in more than 570 decisions, have you ever used, employed, relied upon critical race theory to determine the outcome of any case or to impose a sentence or as a framework for your decision?”

“No, senator,” Jackson replied.

None of the Republican senators has attempted to link any of Jackson’s specific judicial decisions to having been influenced by critical race theory. But a press release from Senate Republican Leader Mitch McConnell complained that the Judiciary Committee had not been provided documents from Jackson’s time as vice chair at the Sentencing Commission, which “would shed light on whether she used critical race theory to influence sentencing policy.”

On the second day of the confirmation hearings, the Republican National Committee tweeted an image of Jackson with her initials crossed out and replaced with “CRT,” for critical race theory.

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