The Dog Whistle Report
Racist babies, religious furvor, and pedophiles at the SCOTUS confirmation hearing
As a rule, criminal defense attorneys don’t lay out systemic racism arguments in front of African-American judges. And African-American criminal defense attorneys rarely make the argument either.
Systemic racism sentencing arguments come into play with white criminal defense attorneys and African-American defendants. And they only do it in front of judges that they consider empathetic to such arguments.
Systemic racism arguments, which arise from Critical Race Theory (CRT), are used in civil suits and those suits are almost always class-action cases.
Despite the above legal system realism, Senator Ted Cruz (R-AZ) went on a bender about CRT during Judge Kentaji Brown Jackson’s confirmation hearing1. It would have helped if as a District Judge, Kentaji Brown Jackson had handled some cases involving racist landlords, lenders, insurance companies, or realtors in class action litigation. Apparently, no such case came up so Ted Cruz was stuck with arcanery and pure legal nonsense. If as a judge Judge Jackson never accepted a CRT arguments, it’s not a real issue - and had she done so, it would have shown up in a court decision.
It would have been a mere blip if other Republican Senators had not continued the dog whistle politics of Ted Cruz. Senator Marsha Blackburn (R-TN), one of six non-lawyers on the Senate Judiciary Committee, decided to focus on a couple of speeches given by Judge Kentaji Brown Jackson. Judge Jackson mentioned the Pulitzer Prize winning “1619 Project” by Nikole Hannah-Jones in a speech2.
The book, a bestseller, made the political Right lose their collective minds and tried to legislate the book away - Senator Tom Cotton (R-MI), another Committee member, proposed the “Saving American History Act of 2020” to preclude the use of federal funds to teach anything within the book3.
Contextually, the mention of a book means nothing and her speech hardly endorsed it, but the dog whistle attempt to associate a Black Jurist with what a Black Female Writer thought and wrote about stands out. The “they are all the same” thinking that pervades racial, ethnic, religious, and sexual discrimination is the worst kind of sterotyping and in this case the worst kind of racism.
But the real prize goes to Senators Josh Hawley (R-AR) and Lindsey Graham (R-SC) who both decided that a Black Judge sentencing white middled aged men in 9 child porn possession cases was worthy of distinction. As previously written about in this blog4, two-thirds of child porn possessions cases are sentenced at or below the guidelines. And 86% of the defendants are white.
Never mind that that the Federal Sentencing Guidelines are advisory and that Jackson’s sentencings in those 9 cases was in the judicial mainstream for such cases, it’s pure dog whistle politics. The political attack of being “soft on crime” is the narrative of the Right and a racially constructed one.
While Senator Graham grabbed onto Hawley’s child porn case obsession, he also took the time to ask Kenjai Brown Jackson about her faith5. Part of it was a push back over the confirmation hearings for Justice Amy Coney Barrett, who had cited her Catholic faith in multiple judicial decisons. But it’s another racial dog whistle — one of the things that allowed wealthy slave owners to propagate their economic system was perpetuating the belief African slaves were nothing more than godless savages.
All in all a rather disgusting display made all the worse by Committee Democrats barely putting up a fuss with the exception of Senator Cory Booker (D-NJ), the only African-American on the panel.
https://www.forbes.com/sites/danidiplacido/2022/03/24/ted-cruzs-bizarre-antiracism-baby-tirade-backfires/?sh=116846165c10
https://www.newsweek.com/marsha-blackburn-racism-ketanji-brown-jackson-questions-scotus-1690453
https://en.wikipedia.org/wiki/The_1619_Project#Political_reaction
https://www.newsweek.com/lindsey-graham-slammed-after-questioning-jacksons-religious-beliefs-1690546