Judge Ketanji Brown Jackson responded to an attempt by Senator Ted Cruz to trip her up about critical race theory, which has become a conservative buzzword, when he asked her if she believed babies were racist.
Mr Cruz mentioned critical race theory and how it originated at their mutual alma mater Harvard Law School. Critical race theory is a niche legal theory that examines how race is embedded in legal frameworks.
The term has since become a catch-all among conservatives for any kind of education about racism in K-12 schools even though the concept itself is not taught in primary school. Gov Glenn Youngkin of Virginia largely won his race in last year’s campaign on banning the concept and Gov Greg Abbott of Mr Cruz’s home state of Texas signed legislation that banned teaching it.
Mr Cruz asked Ms Jackson during the first full day of questioning what she thought of it.
“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,” she said. “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 I’ve studied or relied on if I was on the Supreme Court.”
Mr Cruz noted how critical race theorists’ intellectual ancestors in critical legal studies were rooted in Marxism and said that critical race theorists view every conflict as a conflict between races.
“Do you think that’s an accurate way of viewing society and the world we live in?” the Texas Republican asked.
“Senator, I don’t think so. But I’ve never studied critical race theory. I’ve never used it. It doesn’t come up in the work that I do as a judge,” she said.
In response, Mr Cruz pulled up a quote from a speech Ms Jackson gave the University of Chicago where 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” and said she described what she was doing as critical race theory and asked what she meant by that.
“With respect, senator, the quote that you are mentioning there was about sentencing policy, it was not about sentencing,” she said, mentioning how she was on the US Sentencing Commission at the time. “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 they policy should be.”
Mr Cruz responded by noting she was vice chair of the committee.
“What I meant was that – that that slide does not list the entire laundry list of academic disciplines that I said relate to sentencing policy but none of that relates to what I do as a judge.”
Mr Cruz then asked whether the theory was taught in K-12 schools and brought up how she is on the board of trustees of Georgetown Day School, a private school in Washington DC that many children of the city’s elite attend. He specifically pointed numerous books related to critical to a book by Dr Ibram Kendi called Antiracist Baby.
He specifically pointed out a part of the book that showed that children should confess when they act racist.
“Do you agree with this book that’s being taught with kids that babies are racist,” he asked Ms Jackson.
“Senator,” she said before taking a long pause. “I do not believe that any child should be made to feel as though they are racist or as though they are not valued or that they are less than, that they are victims, that they are oppressors. I don’t believe in any of that.”
The judge, who is seeking confirmation to the Supreme Court to replace Justice Stephen Breyer, said that her understanding when Mr Cruz asked her about whether it was taught in schools, she said she understood it in relation to public schools.
“Georgetown Day School, just like the religious schools that Justice [Amy Coney] Barrett was on the board of, is a private school,” she said.
In response, Mr Cruz asked whether she could admit the school taught critical race theory.
“I don’t know because the board does not control the curriculum, the board does not focus on that,” she said. “That’s not what we do as board members. So I’m actually not sure.”
