Have a topic you’d like us to delve into, a guest recommendation, or just want to say hi? Drop us a line at ontheissues@msmagazine.com.

Background Reading:

• “Celebrating Justice Jackson—As We Brace for a Roe Reversal,” Kathy Spillar, Ms. magazine, Apr. 8, 2022.
• “Justice Ketanji Brown Jackson’s Confirmation Will Bring About Dramatic Shifts in Power,” Katie Usalis, Ms. magazine, Apr. 7, 2022.
• “Ketanji Brown Jackson Is the Justice We’ve Been Waiting For,” Ms. magazine, Apr. 7, 2022.
• “Danger in the Shadows: Supreme Court Uses Shadow Docket to Threaten Abortion Rights,” Ms. magazine, Sep. 28, 2021.

Transcript:

00:00:12 Michele Goodwin:

Welcome to “On the Issues With Michele Goodwin” at Ms. magazine, a show where we report, rebel, and you know we tell it just like it is. On this show, we center your concerns about rebuilding our nation and advancing the promise of equality. Join me as we tackle the most compelling issues of our times. On our show, history matters. We examine the past as we think about the future.

“On the Issues” has taken our listeners through each step of the confirmation process as it happens in real time with commentary and analysis from leading experts, and on today’s show we want to consider what we’ve learned from the confirmation hearings, particularly about the rule of law and threats to constitutional values and principles. Was this a preview to midterm messaging at the Jackson hearings?

This week, I’m joined by Jill Wine-Banks. Jill is a current MSNBC legal analyst appearing regularly on primetime and daytime shows. Ms. Wine-Banks began her career as the first woman to serve as an organized crime prosecutor at the U.S. Department of Justice in Washington D.C. After just over four years, her trial capabilities and win record led her to be selected as one of the three assistant Watergate special prosecutors, where she, again, was the only woman. Her team delivered a brief case of evidence to the House Judiciary Committee as a roadmap to impeachment, and now she joins me on the show so that we can unpack and think about what is it that we saw during the confirmation hearings, not just about what about Judge Ketanji Brown Jackson experienced, but what were the issues that wfere explicitly said on record, implied, that tell us something about the rule of law and the threat to our constitutional democracy?

Jill, I am so happy that you’ve carved out time to be with me as we’re coming towards the conclusion of our Road to Confirmation series, and boy, has it been a doozy from before President Biden actually naming a nominee and hearing some scurrilous attacks that the person wouldn’t be qualified, and many other kinds of things, that whomever the nominee would be would be a person that wouldn’t even be able to distinguish between a clothing catalog and a law case book.

Now, we know that nominee was Judge Ketanji Brown Jackson with a sterling reputation and a deep and well qualified set of credentials that resulted in confirmation hearings where she has now secured a seat on the Supreme Court. She won’t take that seat until Justice Breyer steps down, but boy, what a doozy that was.

00:03:14 Jill Wine-Banks:

Listening to the hearing was actually very depressing to me, and very joyous at the same time. I mean, the joy comes from the unbelievable qualifications of the potential justice who will now become Justice Brown Jackson, and the sadness came from the fact that she had to show grace under fire because she shouldn’t have been subjected to that.

I have seen the politicization of the Court and of the hearings, and almost really the destruction of the consent function of the Senate with these hearings. It was really uncalled for, unnecessary. There was not a single legitimate question to her qualifications to sit on this Court, and so, while she did a great job in handling it, it’s something that no one should ever have to handle.

00:04:18 Michele Goodwin:

Well, there’s so much that was revealed in those meetings and those hearings with the Senate Judiciary Committee, and as you said, it was her being subjected to fire, walking through fire, and doing so with incredible grace and wit and character as she did, but really, I think that for the American public, they were subject to something that really is quite troubling in a number of ways.

There were the questions about her religious commitment, the questions about censorship—not as in would she be opposed to censorship, but the kind of questions that promoted it. And more so, I want to unpack some of that with you in this 15 Minutes of Feminism platform that we have because while there’s been attention as to what it is that she experienced, it’s deeply disturbing what we heard with regard to the rule of law and commitments to our constitutional equality and design.

00:05:19 Jill Wine-Banks:

Yes, but I want to stick with that sexism sentence that you said because I became a lawyer in 19 … well, I graduated law school in 1968. Only 4 percent of all lawyers were women at the time. Four percent.

My class, they had a 5 percent quota for female students and for Black students—5 each—and it was a quota, and so, the kind of sexism that I was subjected to back then was more understandable statistically. When I walked into court and someone said, “Whose secretary are you?” Statistically, they were very much more likely to be correct than incorrect in making that assumption. But we’re not there anymore, and so, why there’s a big deal about a woman or a Black woman being appointed to the Court and why she would have to answer questions about her faith and how she would rate her faithfulness to her faith is—it’s obscene, and I personally am really sick and tired of it.

We’re well past a point in time where anybody’s gender or race should count as anything for anything. Her qualifications were obvious, and that’s what we should be looking at.

I mean, when I graduated law school, there was no Ms. magazine. That’s all, you know, I mean … so, my generation, when we started practicing law, was really out there in a way that shouldn’t still be happening, and it still is. I talk in law schools and meet law students and young lawyers, and they’re still going through a lot of the same things that I went through, questions about, when I was being interviewed for jobs, “What kind of birth control do you use?” “How many children do you plan to have?” I mean, no one should have to answer those questions.

Back then, we did have to answer them or we would not get the job. Nowadays, it’s illegal to ask those kinds of things, but it wasn’t even illegal back then.

00:07:34 Michele Goodwin:

Jill, you’ve opened up the door for us to unpack this in even deeper and nuanced ways. So, this is the Road to Confirmation, and the question that we’ve asked is was this a Republican preview of midterm messaging at the Jackson hearings? Was that really what was taking place, and that it actually had nothing really to do with Judge Jackson at all but about making sure that there were enough hits on Twitter, enough hits on Fox Media, et cetera?

Or was this because Judge Jackson is a Black woman, and what we saw was specifically because the person in that seat is the only, it’s the first time that we’ve seen someone who looks like her in that seat and that that was something that was discombobulating and inconsistent with what we have set as a standard or as a test for being a nominee to the United States Supreme Court?

00:08:38 Jill Wine-Banks:

Both. I think it is definitely because she was a female and because she was a Black person. I mean, you combine those two, and that certainly was, but it is also a sign of the politicization of the confirmation process. It’s a sign of the deep, deep divisions in our country and in our Senate and in our House of Representatives, as well. It is not a good sign.

I just finished interviewing Ruth Ben-Ghiat, and the comparisons between what has led to strongmen from Mussolini—who she considers one of the first people, the first strongman who overturned a democracy and became a dictator—to Trump and Putin, who she puts in the same category. It includes the creation of an authoritarian party behind them, and she believes that GOP is now that authoritarian party.

So, it’s very deeply troubling as we are less than seven months away from the midterm elections. It’s something to be really, really seriously worried about when people are trying to undermine democracy, and I think this confirmation hearing was certainly one example. The role of advice and consent does not allow Congress to do other than look at the qualifications, and that’s legitimate qualifications. That’s not like putting on qualifications that have nothing to do with the job.

This goes back to, I don’t know why it reminds me, when I was general counsel of the Army and we were working on integrating women into the regular Army and into basic training and into many more of the MOS’s—the job categories that women could fill. We looked at what are the real needs of that job? If you want to be a radio operator, your sex has nothing to do with it, your gender has nothing to do with it. Whether you can carry 100 pounds and walk a certain number of miles does, but any person who can do that should be qualified to be a radio operator. So, again, I think we should be at a point where skillsets that match a job are the only thing that you should be able to ask about.

00:11:03 Michele Goodwin:

Jill, you’re absolutely right. Judge Ketanji Brown Jackson, according to the American public, is one of the most popular judges to go through the process in more than a generation. So, she really resonated with the American public and her story, and it really is what we hold out hope for as an American story, as an American dream kind of story, and we can unpack what all of that means on another episode.

But let’s be clear that the American public really, really did find her to be quite favorable. But on the other hand, what we did observe during this process were attacks on substantive due process, and let’s remember that substantive due processes that we’re talking about when it comes to racial justice, sex equality, LGBTQ liberties, disability rights, and so much more, or even substantive due processes being at the core of striking down anti-miscegenation laws that ban Black people and white people from being able to be married, and religious litmus tests, questions with regard to how religiously committed Judge Jackson happens to be, matters about the First Amendment, but it seems to me that these were not just about Judge Jackson. These were questions that we should be concerned about as Americans with regard to attacks on the rule of law, and not the least to mention as well, criminal justice.

00:12:29 Jill Wine-Banks:

Oh, about the Senate in general actually, and that is … I would focus on things like, of course, watching Ted Cruz check his Twitter account to make sure he was getting the right number of hits in response to the things that he had said.

00:12:43 Michele Goodwin:

Oh, stop … Jill. Jill. Jill. Jill. Jill. Did that happen, Jill?

00:12:47 Jill Wine-Banks:

It did. I saw it happen.

00:12:49 Michele Goodwin:

You saw it happen?

00:12:51 Jill Wine-Banks:

Yes. It was there. There he was sitting looking at his Twitter account.

So, I would say things like the right to counsel were being challenged. Judge Jackson was a public defender, and she represented criminals, because that’s what public defenders do. Our system of justice is based on … I’ve been a prosecutor, but in private practice, I was a defense lawyer, and that’s how our system is.

And when you’re a public defender, you also don’t get to pick your clients. They are assigned to you, and I just think that … one of the things that got me to go to law school was reading a book by Anthony Lewis called Gideon’s Trumpet about Miranda, but also related to, of course, the right to counsel, and I firmly believe in the right to counsel, and how anyone could allow her to be questioned about having defended criminals in a system where the rule of law requires that there be defense lawyers …

00:14:00 Michele Goodwin:

Thank you so much for bringing that up, Jill, because to clarify, as a federal defender, that does not mean that the clients that one has have necessarily been proven guilty. That is actually the role of the prosecutor, but it is important to our democracy that individuals are able to receive counsel, and that they’re able to defend themselves against the reaches of government, and to defend themselves when they have been accused of crimes.

00:14:32 Jill Wine-Banks:

And it worries me that the Supreme Court is going to be taking up cases that could lead to states not having to provide lawyers for those who cannot afford lawyers. I think those are some of the things that I focus on. The First Amendment is clearly at risk in many, many ways. You have, you know, Elon Musk trying to buy Twitter, and who knows what would happen? He says, I will bring more freedom to that platform by not censoring anyone, but that means that it will then promulgate lies. It already does, but there is some way that they as a private entity can control the lies that are on their platform. That’s something that is of concern.

There’s also an interesting First Amendment issue with a professor at the University of Pennsylvania Law School, Amy Wax, who speaks hateful, hateful things about Asians and about Black students, and who has tenure, and so far, she’s been removed from teaching first-year classes but has not been removed from a faculty where she speaks these things that cannot make any student feel that they are welcome in her school, any student who cares about equality, but it does raise a very interesting First Amendment issue. And so, with the 6-3 conservative Court, because now Justice Jackson will not affect that outcome, she will be replacing Justice Breyer, and so, it will stay a 6-3 Court.

I am very worried about what the Court will do on some of these issues, and the use of the shadow docket as well. So, it’s very, very troubling, and I think this hearing should alarm every American who watched it, including the people who support Donald Trump.

00:16:33 Michele Goodwin:

So, Jill, we’ve reached this time where we ask the question on our 15 Minutes of Feminism podcast and as well on our general “On the Issues” podcast where we think about the future, and is there some measure of hope? What’s the silver lining? And especially given the context of today’s conversation that directly implicates our Supreme Court and that implicates our Congress, the Senate and also the House as you’ve mentioned, and as a person coming with such deep experience, including investigating a president associated with Watergate, what is the silver lining?

You’ve already mentioned concerns with regard to criminal justice, concerns related to the First Amendment, and also concerns moving forward still about the hurdles that women experience in the practice of law. So, where is the silver lining, Jill?

00:17:25 Jill Wine-Banks:

Yes. First, she is the hope because we saw a truly gifted, skilled, intelligent candidate for the Supreme Court be confirmed for the Supreme Court, and I know that she will for decades to come be a contributor to the jurisprudence of our country, and that alone gives me hope.

The only other hope I can find in it is that the truth is out about how members of the Republican party in those hearings behaved, and because as you pointed out, soon-to-be Justice Jackson is very much beloved and admired and accepted for the skills and qualifications she brings to the Court, maybe some of those people will feel that she was treated unfairly and that no one should be allowed to get away with treating her that way, and therefore, treating other people in similar situations, whether it be because of race or gender, and so, I’m always Pollyanna. I’m always the optimist, and you know, at some point, people will rise up against this.

I know I was subjected to extreme sexist comments by Judge Sirica during the Watergate tapes hearing and during the trial, and the first time, no one came to my defense. The second time, my alma mater, Columbia Law School, the student body wrote a letter to Judge Sirica complaining about his treatment of me, and it made me feel protected and good, and he did apologize, and so, I believe it was also a learning opportunity for him to not at least verbalize, you know, sexist way comments to me.

So, you know, maybe there is something of a learning experience in what we saw and that people from this terrible perspective stop behaving that way, and I will remind people, it is now illegal to do and ask questions based on a person’s gender. So, I remain hopeful that there will be something good that comes out of this, aside from the fact that she is now on the Court.

00:20:15 Michele Goodwin:

Well, with that, Jill, I want to thank you for joining us for our 15 Minutes of Feminism platform at Ms. magazine, and looking forward to having you back on our show. Thank you so much, Jill.

00:20:28 Jill Wine-Banks:

Thank you, Michele. It’s been a joy and a pleasure, and I would do anything for you, ever.

00:20:33 Michele Goodwin:

Thank you, Jill.

Guests and listeners, that’s it for today’s episode of “On the Issues With Michele Goodwin,” our 15 Minutes of Feminism platform. I want to thank my guest, Jill Wine-Banks, for joining me and being part of this critical and insightful conversation, and to you, our listeners, I thank you for tuning in for the full story. We hope you’ll join us again for our next episode, where you know we’ll be reporting, rebelling, and telling it just like it is, as per usual. It will be an episode you will not want to miss, and for more information about what we discussed today, head to MsMagazine.com, and be sure to subscribe.

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This has been your host Michele Goodwin reporting, rebelling and telling it just like it is. On the Issues with Michele Goodwin is a Ms. magazine joint production. Kathy Spillar and Michele Goodwin are our executive producers. Our producers for this episode are Roxy Szal, Oliver Haug, Nassim Alisobhani. Our social media intern is Lillian LaSalle. The creative vision behind our work includes art and design by Brandi Phipps, editing by Will Alvarez and Kyle Goode, music by Chris J. Lee, and social media assistance from Lillian LaSalle.