In 1994, when a friend from my hometown in Louisiana was nominated for the U.S. Court of Appeals for the 5th Circuit, I attended the Senate Judiciary Committee confirmation. Among those deciding my pal’s fate was Strom Thurmond, then a 91-year-old Republican senator from South Carolina.
Thurmond had vehemently opposed the Voting Rights Act of 1965 and the nomination of Thurgood Marshall, who went on to become the first African American on the Supreme Court. In the twilight of his years, Thurmond addressed my friend respectfully and posed reasonable questions.
“Sir,” he began, “Thomas Jefferson once said, ‘Our nation’s particular security is a possession of a written constitution. Let’s not make it a blank paper by construction.’ What do you think he meant by that?”
Forgive me for thinking, at the time, that the days of having a Senate warped by race-baiting White Southerners was coming to an end.
Fast forward to last week’s hearings for Supreme Court nominee Ketanji Brown Jackson, who would be the first Black woman on the highest court.
Sen. Lindsay Graham, R-S.C., who replaced Thurmond in 2002, was one of 11 Republicans on the Judiciary committee – eight of them Southerners if you include two from Texas and one from Missouri.
And some are as vile as any who proceeded them.
Judiciary Committee Chair Richard Durbin, D-Ill., signaled at the start of the second day of hearings that something ugly was about to take place.
“This second day is known affectionately by a term of medieval justice known as the trial by ordeal,” Durbin announced. He was serious, but there was nothing affectionate about it. A Black woman with impeccable credentials comes before the Senate Judiciary Committee for confirmation to the Supreme Court and finds herself in an episode of “Game of Thrones.”
In medieval trial by ordeal, the guilt or innocence of the accused is determined by how much pain they can stand. Or, whether they can come back to life after, say, being boiled in oil. During the trial, the accused may choose to be represented by a “champion” combatant.
Maybe the ever-optimistic Sen. Cory Booker, D-N.J.?
There are no Black women in the U.S. Senate; no one from the sisterhood to step into the breach.
So, Jackson had to endure hours of unremitting and unfounded attacks on her integrity and dignity. Republicans repeatedly suggested that the first Black female high court nominee was soft on crime and questioned whether critical race theory – an academic framework centered on the idea that racism is systemic – influenced her as a judge.
I have read that some political analysts consider the hearings to be less of an attack on Jackson than a testing of Republicans “midterm campaign messaging,” according to CBS. Or, as ABC and NPR call them, “dry runs.”
Maybe Durbin had it right when he said the Republicans were “testing conspiracy theories and culture-war theories.”
What I saw during those four days of hearings was not a test. These were tried-and-true racial attacks, right out of old Strom Thurmond’s playbook. Thurmond knew that the message didn’t matter as much as the attack itself.
Like other “Dixiecrats” of his day, Thurmond believed that any time a White man could be seen putting a Black person in his or her place, knocking them down a peg or two, aggrieved Southern White voters will be impressed. Donald Trump figured that one out pretty fast.
A recent study by VoxEU (a policy portal of the Center for Economic and Policy Research) shows a correlation between such racial “dog whistling” and a dramatic rise in Black motorists being stopped by police in areas where Trump rallies occurred. Trump didn’t even have to mention Blacks specifically – just use coded language that evokes stereotypes of a disliked group.
Such as dangerous, immoral, violent, urban, crime, law and order.
As President Joe Biden put it during his presidential election debate with Trump in September 2020, “[t]his is a president who has used everything as a dog whistle to try to generate racist hatred, racist division.”
Researchers say they used data on nearly 12 million vehicle stops by the police in 142 counties where Trump had held a campaign rally in 2015 or 2016. The results: “Our estimates suggest that Trump’s rallies led to nearly 30,000 additional stops of Black people by the police in the months following the events,” the researchers said.
“Overall, our research shows how the rhetoric used by highly visible individuals can have tangible consequences. Even when Donald Trump was not holding any governmental position and many polls placed him as unlikely his presidential victory, we show that his rallies had an effect on police behavior toward Black drivers. “
These findings are also of significant policy relevance because of the many indirect effects that racially targeted behavior by police may have on minorities. “For example, unjustified police repression can act as a way of voter suppression, when disabused citizens extend their lack of trust in the police to all public institutions,” the researchers said.
Far-fetched? Hardly. We already know that hate crimes rose significantly during Trump’s administration, FBI data show.
At the Jackson hearings, certain Southern GOP senators were seen behaving disrespectfully and contemptuously toward the judge. But that appeared to be the point.
“There didn’t appear to be a lot of explicitly racist or sexist questions that were asked but there was very much an implicit bias in the tone, in the repetition of questions, in the condescension,” Hannah Brenner Johnson, vice dean for academic affairs and professor of law at California Western School of Law, told Law.com.
The “disheartening factor for me was not just the nasty questions that were aimed at her but also the body language, tone and demeanor of some of the senators,” said Patricia A. Broussard, professor of law at Florida A&M University College of Law.
Barbara Arnwine, president of the Transformative Justice Coalition in Washington told me, “Watching the hearings was like seeing a Black woman being assaulted by thugs.”
Near the end of the judiciary hearings for my friend, Thurmond asked a final question, “Do you believe it’s right for judges to yell at lawyers and witnesses?”
The answer was no. (It should be easy enough to answer whether its right for a senator to show contempt to a judge at a confirmation hearing too).
After the questioning, Thurmond told the nominee, “Congratulations on your confirmation.”
As bad as Thurmond was, at least he tried to do better. The behavior of the current crop of GOP senators just seems to get worse.
Courtland Milloy is a local columnist for The Washington Post, where he has worked since 1975. He has covered crime and politics in the District and demographic changes in Prince George’s County, Md. He has also written for The Post’s Style and Foreign
