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Sen. Cory Booker was concerned and relentless. It was Wednesday, the third day of confirmation hearings for Supreme Court nominee Amy Coney Barrett. And Booker had just asked her about a study by the U.S. Sentencing Commission discussing the profound racism exercised against Black Americans who enter the criminal justice system.
“You said you were not familiar with that particular study, as you just reaffirmed, or the facts that they cite in this study showing that interracial bias is present in our system,” Booker said. He noted that he believes Barrett understands that racism does, in fact, exist and that judges have played a crucial role in correcting for racial inequalities.
“I understand that you weren’t aware of specific studies I cited, which are central to the important work of the U.S. Sentencing Commission, which advises federal judges or provides recommendations to federal judges,” he continued. “So I just want to give you an opportunity today to share what studies, articles, books, law review articles, or commentary you have read regarding racial disparities present in our criminal justice system.”
Barrett replied by explaining that she knows the commission issues guidelines and studies, but Booker homed in on his original point.
“Forgive me for interrupting … but I was actually asking specifically any books you can name that you’ve read on this subject, or law review articles, anything that you specifically read outside of the sentencing guidelines?”
This was all following up on Booker’s questioning of Barrett from Tuesday, which had followed up in turn on a meeting between the senator and the nominee before the hearing, at which he said he’d brought up the U.S. Sentencing Commission study. On Tuesday, Barrett said she wasn’t acquainted with the study particularly, but that she was aware of many studies that expound upon implicit bias in the criminal justice system. Now, after she’d had another 24 hours to prepare, he was asking her for more detail about those studies.
“Well, Sen. Booker, I will say what I have learned about it has mostly been in conversations with people, and at Notre Dame as at many other universities,” Barrett said. “It’s a topic of conversation in classrooms, but it’s not something that I can say, yes, I’ve done research on this and read X, Y, and Z.”
“I respect that,” he said. “You’ve answered the question.”
It wasn’t unusual for Barrett not to have an answer in the hearings, but it was striking for her to admit she didn’t have one. Most of Barrett’s performance in her two days of questioning revolved around her telling the senators she was duty-bound not to answer their questions about what she thought or believed about various essential subjects, in the name of preserving her judicial objectivity on future matters of controversy.
From the early going on Tuesday, it was apparent that racism would be one such matter. Sen. Dick Durbin asked Barrett for her thoughts, as a self-styled originalist interpreter of the Founders’ constitutional text, about the past and present role of racism in the country’s life. The Founders, after all, included people who owned enslaved Africans.
Durbin: As an originalist who obviously has a passion for history, I can’t imagine that you could separate the two, to reflect on the history of this country. Where are we today when it comes to the issue of race? Some argue it’s fine. Everything’s fine and you don’t have to even teach children about the history of slavery or discrimination. Others say there’s implicit bias in so many aspects of American life that we have to be very candid about and address. Others go further and say no, it’s systemic racism that’s built into America and we have to be much more pointed in our addressing it. How do you feel?
Barrett: So I think it is an entirely uncontroversial and obvious statement, given, as we just talked about the George Floyd video, that racism persists in our country. As to putting my finger on the nature of the problem, whether, as you say, it’s just outright or systemic racism, or how to tackle the issue of making it better, those things are policy questions. They’re hotly contested policy questions that have been in the news and discussed all summer. So while I did share my personal experience, I’m very happy to discuss the reaction our family had to the George Floyd video, giving broader statements or making broader diagnoses about the problem of racism is kind of beyond what I’m capable of doing as a judge.
Racism, that is, was too important a subject for her to say how she would think about it if she becomes one of the country’s most powerful reviewers of policy. For all the talk about theories of constitutional interpretation, legal decisions are guided by a judge’s, or a prosecutor’s, personal moral compass and how they’ve followed that compass to interpret and apply the law. Barrett and her friendly Republican questioners repeatedly invoked her wisdom as a mother of seven children. But people concerned about racial inequity in the country would just have to trust her to get the problem right—even if, as it turned out, she hadn’t taken the time to do the reading on the subject.
Her record on cases involving racial discrimination, inasmuch as she would talk about it, was likewise confounding. During Tuesday’s questioning, Booker asked Barrett about a 2019 case where she and two other judges upheld the firing of Terry Smith, a Black man from Illinois who was suing his former employer for workplace discrimination. Part of Smith’s case involved his former boss, Lloyd Colbert, allegedly calling him the N-word. In the panel’s dissent, Barrett wrote that Smith “introduced no evidence that Colbert’s use of the n-word changed his subjective experience of the workplace.”*
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“The N-word is an egregious racial epithet,” wrote Barrett. “That said, Smith can’t win simply by proving that the word was uttered. He must also demonstrate that Colbert’s use of this word altered the conditions of his employment and created a hostile or abusive working environment.”
She does not consider that a supervisor calling a Black employee a “nigger” unequivocally makes the workplace hostile. Barrett defended the decision on Tuesday by, once again, defaulting to technicality, saying Smith did not “tie the use of the N-word into the evidence that he introduced for his hostile work environment claim.”
Her adherence to technicality popped up a third time during Booker’s time on Wednesday. He inquired about a blog post she’d written in 2008 regarding federal correction to the racial disparities in crack/cocaine sentencing. In that post, Barrett didn’t address the racism embedded in the disparity and who shoulders that injustice, a key missing piece that gave Booker pause.
“I’m just saying that you’re not citing articles or research that you’ve read on this issue, yet you have written here about it,” Booker said. “And … it makes me wonder and want to talk to you a little bit about your preparedness and priorities taking the highest office in the judicial world that deals with such long-standing issues of race, and in a way that affects the totality of the lives of Americans in every aspect of their life, from their financial well-being to their rights to vote.”
Under questioning, and in the spaces she left around her answers, what Barrett revealed was that she has no true understanding of racism. She can’t square being an originalist with addressing racism because she doesn’t consider racism. She hasn’t read any books or articles about racial disparities in the criminal justice system because she doesn’t have to critically think about racism despite issuing opinions in cases where it was a prominent feature.
“Here we are in the backdrop of … the largest period of demonstrations in the history of the United States—greater than any in the civil rights movement, [where] millions of Americans, often in predominantly if not all-white towns, are coming out to protest issues of race,” said Booker on Thursday. “And I was surprised in this backdrop, [where] issues of race are so important to the Supreme Court, that we had a nominee who can’t even talk to a law review article that they wrote.”
Correction, Oct. 16, 2020: This piece originally misidentified Lloyd Colbert as Larry Colbert.
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