Author: Shannon Moreau

NMBLC gets the perspective of Black law professionals in New Mexico on the importance of the first African American woman Supreme Court justice.

On April 7, 2022, the United States Senate voted 53-to-47 to confirm Judge Ketanji Brown Jackson to the Supreme Court. Once Judge Jackson is sworn in and replaces retiring Justice Stephen G. Breyer, she will be the first Black woman to serve on the Supreme Court. In the weeks following her confirmation, the New Mexico Black Leadership Council talked to four Black law professionals practicing in New Mexico about this historic moment. 

• Sonia Gipson Rankin, Associate Professor of Law, UNM
• Alfred D.  Mathewson, Professor Emeritus, UNM, Henry Weihofen Chair in Law
• Leon Howard, Legal Director, ACLU New Mexico
• Aja Brooks, President, New Mexico Black Lawyers Association

We asked each one four questions about the importance of the Supreme Court and what KBJ’s confirmation means for our community and the country. Keep reading to find out what they said!

NOTE: Interview responses have been edited for clarity and length.

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Plenty of topics arose during the confirmation hearings that were more about political positioning than the work of being a Supreme Court judge. What sorts of things will KBJ’S position have the potential to have real impact on?

Sonia Gipson Rankin:

Right now we’re using a product called Zoom that’s being hosted over someone’s wifi Internet access. From the lights that are turned on in our spaces, to the Internet in use, to the food you had this morning and its regulation, to the medication access that you can get this afternoon, to what restaurants to go eat at, and how your children will be educated throughout our communities—every part of our life is given formal, final approval by the United States Supreme Court.

Now that sounds really grandiose and kind of silly in a way, like oh, my goodness, they’re going to decide if I can have Froot Loops for breakfast. But in reality, the answer is yes, they are responsible for overseeing the structure for who says yes and no down the line. Right now, the big topics that catch people’s attention—access to voting, access to reproductive rights, access to particular kinds of education, or with that one federal judge striking down the mask mandate on mass transit.

All of these can make their way to the United States Supreme Court. They do weigh in on substantive law.

But by and large, because of the way we’re set up under federalism from the United States Constitution, there’s quite a few things that have been enumerated and left to the states’ discretion. So those are some of the things that will be on Justice Jackson’s plate.

Alfred D.  Mathewson:

I think there’s anticipation that [Judge Jackson] is going to vote a certain way and in most of the cases, particularly civil rights cases, she will. As a judge she has to apply the law and you get to see both sides of an issue and you get to see what the legal arguments are. The case out of Alabama that she was criticized about is a case in point. She sided against some Black workers and they thought she ruled the wrong way and were very concerned about it. But her response to it was, when you look at the mix, there was more than one group of employees. She had to look at everybody, as opposed to just one.

[Ketanji Brown Jackson’s confirmation] is a big moment…but President Obama was a big moment. And he accomplished a lot. There’s a lot of criticism, because it didn’t happen fast enough, but there was all this hope that came with President Obama and a lot of people who found the hope unfulfilled; and it may be that there’s the same sort of hope for her. Immediately, we know that the votes won’t change. The court still has that six-three imbalance. It’s not going to change. I don’t know what expectations people have, what she can do as one of the three. But we don’t know how things will play out. Just in terms of where will she make a difference—civil rights, criminal law. 

Leon Howard:

When we’re talking about the United States Supreme Court there is this unfortunate occurrence that the Court’s becoming more and more politicized in the eyes of many people. In terms of the work of the Supreme Court, most of the cases are these highly-politicized issues that polarize America. People look to the Supreme Court for how we’re going to grapple with these issues. Something that obviously comes immediately to mind is reproductive rights. 

I think that KBJ has a very balanced perspective on criminal system reform. She’s a former public defender, she’s been on the sentencing commission, and during the confirmation hearing [she talked about] law enforcement in her family and she has many family members who have been entangled in the criminal legal system. Having her on the court, somebody who has a background being a Black woman, will be able to influence and carry her experience with her and hopefully we’ll see some of that get into opinions, dissents, things like that.

Aja Brooks:

[KBJ] would have influence over a lot of the future case law that is going to mold our nation.

A position on the Supreme Court of the United States is one of the highest positions of power in our nation. I think that some of the rhetoric and some of the questioning was just an attempt to discredit and put focus on things that really don’t matter. The main thing that’s important is her qualifications and what she’s done in her academic career, legal profession—all of those things are very stellar. Above and beyond just the norm. She is able, as a member of the Supreme Court, to mold policy, to mold case law moving forward. We’ve seen how case law can be used for the good and for the bad.

“It’s really important that we have that representation there because case law does have a huge effect on our lives.”

—Aja Brooks, President of New Mexico Black Lawyers Association.

The main criticism against Ketanji Brown Jackson is that her sentencing record is too lenient. Do you think this is a fair and accurate criticism?

Rankin:

From everything I’ve been reviewing, the answer to that is no. She was pretty much in line with judges who do this work across the nation from multiple political parties, gender backgrounds, racial backgrounds. 

We get caught by the big words and we want to be very mindful and concerned, what kind of judge lets heinous things happen? It’s a judge who is working within the United States legal system, that has innocent until proven guilty and mitigating factors. Judges are also bound by a precedent called stare decisis. Which means that judges are tasked to follow precedent. This is a responsibility of our judges.

What we are finding, with as extensive of digging into the Honorable Ketanji Brown Jackson’s background is, she’s a really great judge who understands the rules, understands the needs of the community, and you can just see that in the hundreds and hundreds of opinions she decided. 

Mathewson:

What she did was consistent with what federal judges were doing, so she was not an anomaly; she was very much in line. The questioning about the child porn case—there were people making politics of what happened and describing it in political terms, even though she was very much like all other judges.

Howard:

No. When people think of sentencing only as the number of years of incarceration, you’re not looking at the whole picture. With her background, her upbringing, her experience as a public defender, it’s actually refreshing to have someone on the Court who can look at sentencing from a holistic perspective, see if there’s alternatives to incarceration and not only think about the penal carceral aspect of sentencing.

Brooks:

I don’t. In federal judgeships there are very specific sentencing guidelines and ways that criminal defendants are sentenced. She did not do anything out of the norm. She was following the guidelines as they are given to the judges. I think some of the rhetoric was trying to upset people who might not know about that background, to make it seem like she was doing something that was completely inappropriate, when the judges have the guidelines for a reason. 

I had a conversation with my mother about this. I started my career off as a criminal defense attorney working for the public defender’s office here in Albuquerque and a lot of times there’s a tough on crime approach that gets to be the rhetoric in our society. It should be more of a rehabilitation approach, or even a focus on the humanity of people, whether they’ve done something awful or not. I think it’s really important for people on our Supreme Court to still be able to see the humanity in others despite the things that they’ve done in their past. In reality, we’re all human beings, we’ve all done horrible things. Not to say that punishment isn’t necessary in some situations, but also it’s important to remember that people are human and that people can be both good and bad.

“It’s actually refreshing to have someone on the Court who can look at sentencing from a holistic perspective.”

—Leon Howard, Legal Director, ACLU New Mexico

In a history of “firsts,” the vote for KBJ at 53-47 stands out as the most partisan, compared with Sonia Sotomayor (68-31), Sandra Day O’Connor (99-0), and Thurgood  Marshall (69-11). What do you think this says about our current political climate?

Rankin:

I think we’re just watching some hardening that is occurring in this process. So, while [KBJ’s confirmation] is a first, there are attempts to look away from it being the first.

Some of the language by Senator Mitt Romney I found to be encouraging; he recognized very clearly this is a moment in history. He wanted it very clear on his record, on his life record, and his record as a person in our shared society, that we do notice moments that are different than previous moments, and we honor that.

Mathewson:

It reflects the polarization of where we are right now. What to me was more interesting was the public opinion. Because what I don’t see is the comparison of public opinion with the justices at the time. What I read is that the public liked her a lot. 

The confirmation process is going to reflect whatever the political situation is. It’s going to take leadership to focus on what this person will be like as a judge, what they will do, what are the things that matter to being a justice as opposed to what matters in terms of politics.

I think that we need more diversity on the Court, apart from just in terms of looking like the country, but we need geographic diversity, we need diversity in terms of the backgrounds for getting onto the Court.

“What I don’t see is the comparison of public opinion with the justices at the time. What I read is that the public liked her a lot.”

—Alfred Mathewson, Professor Emeritus, UNM

Howard:

It says a lot. That goes to the unfortunate circumstance we’re in where we are so polarized even with previous Supreme Court justices. There’s obvious credentials that KBJ holds that makes her more than qualified to be a Supreme Court justice, and it seems that people would zero in more on those qualifications. 

But that’s where we’re at. We have the first Black woman on our Supreme Court, who was the most narrow margin in terms of votes to confirm her. It’s hard to grapple with that, right? Yes, we’re polarized, but also, it’s the first Black woman, and this is the first time we’re seeing the confirmation numbers look like that and that is very unfortunate, particularly when you stack her credentials up next to any Supreme Court justice we’ve ever had.

Brooks:

Our current political climate is very stratified. It’s very “I’m right, you’re wrong” on both sides.

There are fewer people who are willing or who make the effort to come together despite differences.

This is just my personal opinion, [but] social media has had both a good and bad effect. It has helped us to exchange ideas, helped us to access information, build knowledge. At the same time, it’s sometimes easier to say something bad on the Internet, than to have a conversation with someone and really hash out why someone thinks something, how it affects others. We have less of an opportunity to come together to have those really meaningful conversations that can change hearts and minds. 

That’s reflected in our political atmosphere today. That’s reflected in her confirmation hearing, that’s reflected in all [but three] of the Republicans voting against her and all of the Democrats voting for her. It’s become more of a political process versus selecting the next Supreme Court justice of the United States.

What was your reaction to the photograph of Leila Jackson (KJB’s daughter) on the first day of the hearings?

Rankin:

It was a bit of a sankofa moment–this understanding that we’re going to go forward but we’re going to take the best of our past with us as we go forward. In that moment, it was the Honorable Judge Jackson’s daughter watching her work to become the first Black woman to be United States Supreme Court justice, but in that moment, I could also picture other young girls who looked up to their mothers being the first in things.

That moment reminds me of how Judge Jackson once looked up to her parents and how her parents looked up to their parents; how much our foreparents knew that a new moment would come. And even if the moment wasn’t to be in their lifetime, what they were willing to withstand so that the moment could come. Do we have the fortitude to withstand this for the next moment to come for our children?

“In my family, it took just one generation to go from segregation to the Supreme Court of the United States.”

— Judge Ketanji Brown Jackson

We’re probably thinking that [KBJ’s daughter is] just dealing with these people looking at her mom, but in her mind she could be remembering her mom driving her to swim lessons, her mom staying up late to edit essays, her mom teaching her how to cook something in the kitchen and listening and laughing. 

“Do we have the fortitude to withstand this for the next moment to come for our children?”

—Sonia Gipson Rankin, Associate Professor of Law, UNM

That’s what I see in that picture: “All right, Mom, here’s how we navigate, here’s how we don’t let their brokenness get into us, we don’t give them all of us. You guys don’t even deserve to get all of what my mom brings to the table, because she saves the best for us.”

She saves the best for us.

Mathewson:

[My thought was] that the daughter was very proud of her mother. “My mom is doing this. We’re on national TV. This is the Senate, they’re grilling my mother, and she is bringing it.”

Howard:

The best part about KBJ is she just seems like a real person; she leads with her identity as a mother, a friend. She just seems like somebody in my family or somebody I can approach, and when you see her interact with their family–you see her daughter, the way her daughter adores her–it just feels good to have such a family-oriented person in the position she’s in.

Optics matter. There’s a balance when we lead with someone’s identity because we don’t want KBJ to be pigeonholed as, “She’s at the Supreme Court because we just wanted to break this barrier of having a Black woman there.” How qualified she is, is how we should talk about it. These optics of having a young Black girl in elementary school, high school, going through law school and you have an example of somebody who looks like you in that position. It breaks a barrier in people’s minds and you can’t really minimize that.

Brooks:

I was really overjoyed.

Representation is really important. If you see someone who looks like you achieving greatness, you realize that you can also achieve greatness. That shows our young people, that shows our daughters, that shows our sons that we can also do that. It was very similar to the feeling that I had when I saw Vice President Kamala Harris [inaugurated]. It was a feeling of, This is historic. This is something for my son to see, someone who looks like his mom, achieving greatness.

I don’t want this all to be doom and gloom. We have come a long way. The path has not been easy. The path has been very, very difficult, but progress has been made. And seeing someone like Justice Jackson up there on the Supreme Court— she’s a dark-skinned Black woman, she looks like me, and that is important for our future generations.

Final words on KBJ’s confirmation

Rankin:

It’s been well over 400 years that there has been a Black presence in what would be the future United States, and in 400 years it’s not like Black women have just been navigating behind the scenes. There have been legal decisions about the status of Black women. [Here in New Mexico] Isabel de Olvera—there’s legal documentation about her right in Santa Fe—she wanted it clearly outlined that she was half-Black and half-Indian. She wanted it documented, her legal status, when going from Mexico to what was New Mexico, to Santa Fe. She wanted a legal part of her story told.

Isabella Baumfree, who we know as Sojourner Truth, went to the courts and said, They have taken my son, they have taken his freedom, I want him back. She went to the courts to advocate for the freedom of her family and won in the 1800s. There were legal statutes determining the outcome of Black women in this nation. So for us to take over 400 years to have someone in those spaces, [someone] who knows what Isabella de Olivera was talking about when she said, I want my status clearly documented. Who knows what Isabella Baumfree was able to articulate. That the law says, I am to have recourse, whether you follow it or not. And she used the system to get her recourse.

I’m just so honored about the Black judges in our own state of New Mexico. I think about people like Judge Angela Jewell and Judge Tommy Jewell and Judge Shammara Henderson and Judge Stan Whitaker and Judge Beatrice Brickhouse and Judge Valerie Huling. We’ve got so many amazing Black jurists in this place that have continued on to make sure that the Black story is carefully seen and respected and honored. You know, this is a national thing and we’ve got our own local treasures, right here.

“In 400 years it’s not like Black women have just been navigating behind the scenes.”

—Sonia Gipson Rankin

Mathewson:

I have generally stopped celebrating firsts. I mean after 400 years firsts often seem more like an indictment. There’s an illusion that things have changed, that this is going to be different. It’s exciting, the first, but the expectation for some people looking at this [is like], See we did it, we have a Black woman justice, we’re good. So I often think the second is more important than the first. Because the first, yeah, this is something that should have happened a long time ago, but are you really serious? The second would indicate serious. There’s something about the soon-to-be Justice Jackson that reflects that. She will be the third African American justice. That indicates to me that we will not have a time again when there is not an African American on the Supreme Court. The first Black woman becomes the third African American. Some real change is going to occur. And this will be the first time there will be two Black justices on the Court at the same time. I know people like to discount Justice Thomas, but there’s a picture here in that regard.

Howard:

I do think that this highlights that we’re in 2022 and we’re still seeing a lot of firsts. The first Black woman Vice President, the first Black woman Supreme Court justice. Here in New Mexico we’ve had the first Black woman state appellate judge, very recently, and we need to continue to break these barriers, so the next generation can visualize themselves in these positions. The whole narrative out there that we’ve come a long way and still have so much further to go, it’s highlighted by the fact that we’re in 2022 and when Black people attain high positions we’re still saying this is the first Black person to do X, Y, and Z.

That just illuminates how far we still have to go.

Brooks:

I’ve had some conversations with other members of the New Mexico Black Lawyers Association and everyone is just very, very excited. This is a historic, monumental reason to celebrate. This is joyful.

I think sometimes we can get lost in the process of it all, and the difficulty of it all, and I don’t think that that should be ignored, because we need to look at those things to make progress. But also, this is a very happy time. We should most certainly celebrate because it shows that [despite] a lot of the difficulty in the past, discrimination and racism and slavery and all of those things, we have made progress.

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Shannon Moreau is the Editor for the NMBLC EQ Blog