If/When/How quote graphic with a black background and a white If/When/How: Lawyering for Reproductive Justice logo in the upper right corner. To the left is the quote in bold, white, and teal text that reads, “Judges, like juries, despite the call for objectivity, do not leave their lived experiences behind when they walk through the doors of a courtroom. What could it mean for a “reasonable person” standard to be analyzed by someone with a different perspective on what it means to be reasonable, a perspective that is not white, that is not cisgender male, something altogether different..” Below in bold, white text is the attribution: Yveka Pierre, Esq. If/When/How Senior Litigation Counsel.
Representation Matters, But It Doesn’t Upend Systems

By Yveka Pierre, Esq., If/When/How Senior Litigation Counsel

Yveka Pierre, Esq.

I’ve been thinking a lot about Toni Morrison since Judge Ketanji Brown Jackson’s nomination to the Supreme Court of the United States was announced. Like other Black women, particularly other Black women attorneys, my excitement was tempered by the storm I knew was coming. Shortly after President Biden announced his intention to nominate a Black woman to the highest court of the land, the whine of reverse racism raised a cacophony on the airwaves, social media, and across dinner tables. We knew once Judge Jackson was nominated that the white gaze–and its shallow depth–would focus itself on her, and by extension, the rest of us. It wouldn’t be a regular job interview. It would be what it tends to be whenever a Black person is handed a title of “first.” There would be questions about worthiness, paternalism shrouded in faux concern, and when we are saved from the task of deciphering, we would just be faced with good ole fashioned racism. 

I get so weary of firsts, both the inequity that precedes them, and the respectability politics that come after them. I loathe that every individual accomplishment has to mean so much, but it does. Because when Black women achieve, it is never an easy road, it is one slinking through the oil of casual racism and sexism, and wading through the cesspool of active racism and sexism. It means being in rooms where the jokes have a punchline that looks like you, or your cousin, or the candy lady who gave you the extra hot sausage when you came through with a good report card. It means explaining hot sausage. Or candy lady. It means being the exception and never the rule. 

In a 1975 keynote address at Portland State University, Toni Morrison talked about the function of racism in a series of quotes that I’ve returned to consistently as my praxis has sharpened and shifted over the years: 

“The very serious function of racism is distraction. It keeps you from doing your work. It keeps you explaining, over and over again your reason for being…None of this is necessary, there will always be one more thing.”

Judge Jackson’s confirmation process has exemplified that there will always be “one more thing.” This is why a confirmation process – whose mere existence is already a function of inequality – devolved into demands of LSAT scores from a sitting judge by pundits, and a bizarre and disingenuous demand of explanation and analysis of critical race theory, as if we were in a college classroom. I sat for the LSAT over a decade ago, and I would be hard-pressed to remember my score, let alone after decades of legal practice. Judge Jackson’s confirmation hearing became a push and pull of weaponizing her identity, while belittling or ignoring her accomplishments, diverting from the legal fiction that confirmation hearings should be a public job interview. 

To be clear, Judge Jackson is a qualified jurist, and in fact, nothing about the process of her confirmation has much to do with her qualifications to be a Justice. Her career has spanned clerking for judges on the District Court, Court of Appeals, and the Supreme Court of the United States, she has gone on to sit as a judge in the District Court and the Court of Appeals. She has been a law firm associate, Special Counsel with the Sentencing Commission, and a Federal Public Defender. While I find the focus on her degrees from Ivy League schools to be infinitely classist and reductive, it is worth mentioning that she is from South Florida, and graduated from Miami Palmetto High School. 

I don’t stan judges. The nature of my work makes it impossible to be a fan of any sitting judge because there will always come a time when they rule against me (personally in cases that I am involved in) or in a case or controversy that I have strong feelings about. However, I believe that changing the face of the judiciary to better reflect the ever-changing experiences of those who live in this country is a net good. That is because judges, like juries, despite the call for objectivity, do not leave their lived experiences behind when they walk through the doors of a courtroom. What could it mean for a “reasonable person” standard to be analyzed by someone with a different perspective on what it means to be reasonable, a perspective that is not white, that is not cisgender male, something altogether different. That perspective shift – albeit hundreds of years into the existence of an institution – gets to the crux of what this very country aspires to be, a representative democracy

That being said, identity, in and of itself, does not beget identity politics. As it stands, Black folks are not monolithic, and in the United States, that stands even truer. We are a diaspora, our roots, and branches spread across cultures, classes, and needs. The Combahee River Collective, who coined the term identity politics, put it best. “If Black women were free, it would mean that everyone else would have to be free since our freedom would necessitate the destruction of all systems of oppression.” 

Judge Jackson’s confirmation to SCOTUS is not about freedom, it does not destroy systems of oppression. Her confirmation is about working within a system. And while widening the scope of experiences and viewpoints on the bench to include that of a Black woman may lead to some positive outcomes for some people experiencing oppression (to the apparent chagrin of conservatives), it doesn’t erase the conditions that allow oppression to occur.

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