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0:49

I'm Anita Hill. This is

0:51

Getting Even, my

0:53

podcast about equality and

0:55

what it takes to get there. On

0:59

this show, I'll be speaking with trailblazers,

1:02

people who are improving are imperfect

1:04

world people who took risks

1:06

and broke the rules. But

1:09

I have to start off this series by

1:11

addressing the historic moment we're

1:14

in right now. As

1:19

a lawyer and a former witness

1:21

at a Supreme Court confirmation hearing,

1:24

I've been laser focused on President

1:26

Biden's recent nomination. On

1:29

February twenty fifth, I watched anxiously

1:32

as he stood at the podium with Vice President

1:34

Kamala Harris on one side and

1:37

on the other Judge Katanji

1:40

Brown Jackson. The

1:42

announcement that was weeks, actually

1:45

centuries in the making finally

1:48

became real. It's

1:51

a first for our country and speaks to so

1:54

much of my work and what

1:56

I'm talking about on this podcast. The

1:59

whole country will be watching as

2:01

Judge Katanji Brown Jackson goes

2:04

before the Senate Judiciary Committee.

2:08

I'm very familiar with that committee.

2:10

They're the same body that I stood

2:13

in front of in nineteen ninety

2:15

one when I testified about sexual harassment

2:18

I experienced working at the Equal

2:20

Employment Opportunity Commission under

2:22

Clarence Thomas. My

2:24

name is Anita F. Hill, and

2:27

I am a professor of law at the University

2:29

of Oklahoma. Back

2:32

then, the committee was made up entirely

2:34

of white men, and

2:36

the chair in nineteen ninety one

2:39

with Senator Joe Biden,

2:42

the same Joe Biden who's making

2:44

history today as President.

2:47

My nominee for the United States Supreme Court

2:49

is Judge Katangi Jackson, who

2:52

brings extraordinary qualifications,

2:54

deep experience and intellect, and

2:56

a rigorous tradicial record to the Court.

2:59

I wanted to have a conversation with someone

3:02

who I know appreciates the significance

3:04

of this moment, so I called

3:06

up Mark Lamont Hill. He's a

3:08

journal social critic

3:10

and professor, and no,

3:13

we're not related. We

3:15

spoke a few days before Judge Jackson

3:17

was announced as a nominee, which is why

3:20

you won't hear us refer to her in our

3:22

conversation, but the larger

3:24

conversation remains unchanged.

3:28

Mark Lamont Hill and I set out to

3:30

discuss what this moment means

3:33

for justice, what it means for

3:35

a representation, and

3:37

the benefits to everyone of

3:40

this historic nomination. Professor

3:43

Anita Hill, it is so good to see you. It is

3:45

so good to talk to you. This is a big

3:47

deal. Then you're certainly no stranger to big

3:50

deals around Supreme Court nomination, so I know

3:52

you understand how important it is,

3:54

Oh absolutely, and I'm

3:56

looking forward to the really

3:59

positive things that can come out of this. Nineteen

4:03

was a moment where the Senate

4:05

Judiciary Committee had an opportunity to

4:08

listen to the voice of a credible black

4:11

woman, and not only did they not do it,

4:13

but their attitude seemed to reflect an inability

4:16

to recognize a black

4:18

woman as intellectual and capable

4:21

and balanced and fair, etc. And

4:23

so I'm wondering if they can't even do that at the level

4:25

of a witness, if they're able

4:28

to think about a black woman

4:30

jurist, and now it's been

4:32

thirty years, how do you think

4:35

about the ability of the Senate

4:37

Judiciary Committee to even assess the

4:39

qualification of a

4:41

black woman for this job. Well, fortunately,

4:44

the Senate Judiciary Committee

4:46

has changed so it

4:49

is much more diverse than it was thirty

4:52

years ago. I think that there

4:54

is so much to be gained from this nomination

4:57

and the public discussion about

5:00

our sense of justice in this country

5:02

and the importance of the Supreme Court

5:04

in representing our sense of jobs

5:07

death. The first place where the conversation

5:09

about justice emerged was

5:11

when President Biden said that he was

5:13

going to honor his campaign trail commitment

5:16

to choosing a black

5:19

woman. And this is something

5:21

that I think was left out of the public conversation to

5:23

some extent, is that the decision to

5:26

consciously select a black woman is not the

5:28

first moment where there was a conscious intent

5:30

to choose people. The hundreds of years where the courts

5:32

were all white male didn't happen by happenstance.

5:34

It wasn't a meritocracy that somehow

5:37

being interrupted. They were very intentionally

5:39

not choosing Jewish people at one point, very intentionally

5:41

not choosing black people, and then somehow

5:44

the subtext keeps emerging, and

5:46

that's one around qualification.

5:50

Yeah, I think again that's a part of

5:52

our history that we want to pretend

5:54

to us on excess. Those judges

5:56

are there, they have been their constant.

5:59

Spaker Mobley, who was on

6:01

the Second Circuit, wanted a kid stout

6:03

who was one of the first

6:05

black woman appointed to a

6:08

state supreme or back

6:10

in the eighties, Paully

6:12

Murray, who wrote Richard Nixon

6:15

and laid out her resume

6:17

and all her credentials for

6:19

being on the Supreme Court, and told him

6:22

that he should nominate her. And she was

6:24

right, of course, I mean she's

6:26

I mean, she was a brilliant legal theorist.

6:29

But we have so erased

6:31

that history it

6:33

is though we're invisible. In

6:36

other words, Joe Biden isn't the first person to

6:39

identify qualify black women. And this

6:41

isn't the first generation of qualified

6:44

Black women by any stretched. Every women

6:46

for decades, and certainly

6:48

it's not centuries who have been equally

6:52

qualified and deserved a place on the

6:54

court, they simply didn't have the opportunity.

6:57

I think that's an important piece

6:59

to add, particularly against

7:02

the backroom of this public outcry that that

7:04

Joe Biden is suddenly going rogue and being

7:07

selective or intentional about

7:09

who he's selecting for Supreme Court, as

7:11

if again for centuries that hadn't been

7:13

qualified black women who were intentionally left to offabilities.

7:16

My worst fear in this conversation

7:19

is that we will resort

7:21

to racist tropes, sexist

7:24

tropes, and

7:27

we are going to miss this opportunity

7:29

to ask some really important

7:32

questions today. What

7:34

are those questions? Well, I think we

7:36

should be asking who's missing from positions

7:38

of power and influence in

7:41

our political systems, and that includes our

7:43

judiciary. What do we do to

7:46

step out of that? How do

7:48

we imagine equality in the future.

7:50

You know, we have been operating

7:53

for a while from what I

7:55

think is a

7:57

nineteen sixty four version

8:00

of equality, and it

8:03

has worked very well, but it

8:05

has not finished the job of

8:07

creating equality. For one,

8:10

what is the nineteen sixty for context right? Because

8:12

there were people who are saying, well, that sounds like a good

8:14

idea. We didn't have access to public accommodations, we

8:16

didn't have access to civil rights. We needed

8:19

to be in places that wouldn't let us in. What's

8:21

wrong with the nineteen sixty four vision or what's

8:23

limiting about it? There's nothing

8:25

wrong with it. In fact, I've

8:27

benefited from it, so I would

8:30

not say that there is anything

8:32

wrong with it. But what we know

8:35

is that we still have

8:37

huge disparities on many,

8:39

many fronts. So we

8:41

need to be thinking about if our goal

8:44

is equality, what more can

8:46

we do. We have been having

8:48

challenges over the last few

8:51

years, things like the Me Too movement

8:53

and like Black Lives Matter, and

8:56

I think at the core of those movements

8:59

is a cry for new ways

9:01

of thinking about justice and

9:03

equality. And so

9:06

far we have people

9:09

who are buying into the

9:12

messages of those movements,

9:14

but we haven't had

9:16

the leadership that follows,

9:19

and we haven't had any changes

9:22

in the structures that are

9:26

limiting our advances

9:28

toward this new way of

9:30

thinking about equality inclusively

9:33

and broadly as fundamental

9:35

to our democracy. When

9:38

we come back, Mark Lamont

9:40

Hill and I get into the question of objectivity

9:43

in judging and whether or

9:45

not it's possible. You're

9:53

listening to getting even my

9:55

podcast about equality and

9:57

what it takes to get there. I'm

10:00

Anita Hill. A

10:02

few days before Biden announced Katangi

10:05

Brown Jackson as his pick for

10:07

our next Supreme Court justice, I

10:09

called up Mark Lamont Hill. We

10:13

spoke about what it means to the

10:15

country to have a black woman nominated

10:17

to the highest court. One

10:19

of the things that will definitely come out of the

10:21

conversation is whether the person can be

10:24

impartial, and rather

10:26

than simply proving that black women

10:28

have the same capacity to be impartial

10:31

as white men, or to make the case that everybody's

10:34

impartial on some level, is

10:36

this an opportunity or should we take this as

10:38

an opportunity to reshape

10:41

the language around impartiality and objectivity

10:43

rather than to try and wedge ourselves

10:46

into the framework that always has the world

10:48

looking at us like we're short. This

10:51

is just like the questions about competence.

10:54

They only come when you

10:57

have a

10:59

person of color, and they

11:01

come up for the purpose not of finding

11:04

the right person for the

11:07

bench, but they come

11:09

up to discredit

11:12

thinking yep and ideas

11:15

in resistance to the status quo.

11:19

And so I think we're

11:21

at a moment where we know that

11:24

if we are going to move

11:27

us as a country to expand

11:29

our thinking about the role

11:31

that the law can play in

11:34

creating a more just and equal

11:36

society, then we

11:38

have got to resist those

11:41

old ways of eliminating

11:44

people by simply saying they're

11:47

not qualified or they can't

11:49

be objective, assuming

11:51

that there is one standard

11:54

or qualification or one

11:56

standard of objectivity. You

11:59

know, there's an interesting story about Constance

12:02

Baker Motley, who I

12:04

mean, she may have been considered, but she was certainly

12:06

never nominated to be on the Supreme

12:08

Court work. But she was a

12:11

judge in a case. It

12:13

was an employment discrimination case, and

12:17

what the council defending

12:20

against the lawsuit asked

12:23

was that Constance Baker Motley

12:25

recuse herself, and this

12:27

was in the papers that were

12:30

submitted to the court, because her

12:32

race and her gender would

12:35

make her suspect and unable

12:38

to be objective in this case. I

12:41

love her response because she said,

12:44

if that is the standard we began to

12:46

hold, then we must recognize that

12:49

everybody on

12:51

the bench is incapable of

12:53

being objective, because

12:55

everybody on the bench has both

12:58

the quality of a race and agenda.

13:00

But we only see that when

13:03

we see people of color.

13:06

Of course, she did not recuse herself,

13:09

but I think she made the best argument.

13:11

That is our best response. When we

13:13

start talking about the objectivity

13:17

of black women, then we have to start

13:19

talking about the objectivity of

13:21

all of the white male judges and

13:24

the black male judge. I mean,

13:27

is anybody ever objective?

13:29

You're pointing to something very interesting, right. That's

13:31

beyond partisan politics, and that

13:33

is a question of political imagination,

13:36

of judicial imagination, the ability

13:38

to take different approaches to the law, different

13:40

traditions, different beliefs, different worldviews,

13:43

and to incorporate them into one's

13:46

practice. These are things that aren't

13:49

limited to the Democrats or the Republicans.

13:51

This is about a worldview that comes

13:53

across them both. And so diversifying

13:56

the Supreme courtnel on some level allows

13:58

us to push back against that trend. And it

14:00

doesn't seem like we even realize many of us don't

14:03

even realize that that's a trend to push back against.

14:05

One of the things that Ruth Bader Ginsburg did

14:08

was it very often called out

14:10

her colleagues for not understanding

14:13

the experiences of women.

14:15

We talk about the judicial imagination. Her

14:18

imagination for what justice

14:20

is is quite different

14:23

from her colleagues, and she was not afraid

14:25

to say so. Yes. And this

14:28

nomination and the way that it was announced

14:30

was intentional challenge

14:33

to the status quo, an opportunity

14:36

for us to say, we need

14:38

a judiciary that

14:41

reflects the population that

14:43

is going to come before it, that reflects

14:47

ideas, new ideas based

14:49

on different lived experiences

14:52

in terms of deliberations and

14:54

decision making, and even

14:57

their new ideas or new experiences

14:59

about the path to becoming

15:03

a judge and what judging is and how

15:05

it happens, and the

15:08

value that can be brought

15:10

in where new ideas about

15:13

how to define justice are

15:15

allowed to be considered.

15:19

It's an intersection again of gender and

15:21

race, right because when Trump said I'm

15:24

electing a woman, no one thought

15:26

that he meant anything other than a white woman. When

15:29

Reagan made the same determination, no

15:32

one thought that he was considering anything other than

15:34

a white woman. And when Joe

15:36

Biden says, well, I'm going to choose a black woman,

15:39

I think it's that intersection that was

15:41

just untenable for

15:43

so many people. And the wonderful thing

15:45

about the moment is that we

15:48

not only have a chance to

15:51

look at intersectional bias

15:53

against women of color, but in this

15:56

case black women, we have a

15:58

chance now to look

16:00

at the intersectional value,

16:02

the value that having

16:05

lived experiences as

16:08

both a female

16:10

and a black person

16:13

is really something that

16:15

can contribute to the thinking

16:18

that goes into judging and

16:21

that goes into our

16:23

definitions of justice

16:27

today. And if we if we don't,

16:29

if we don't see that as this opportunity.

16:31

If the Senate Judiciary Committee isn't

16:33

asking questions about

16:36

those two things, then there's a missed

16:38

opportunity for the entire American

16:41

public. And the problem is they don't know

16:43

what to ask, They don't even have the self

16:45

awareness to ask those questions,

16:47

and they didn't understand

16:49

the thing that you're that you're speaking to now,

16:52

which is it's not just

16:54

a nice act of liberal generosity

16:56

to diversify the court, but that there's

16:59

some inherent value to diversity, that there's

17:01

something that it's an added value

17:03

to say this court should look different. It offers

17:06

differences in terms

17:09

of what the judges talk

17:11

about in their deliberations, what is

17:13

the conversation like in their

17:15

deliberations, And those

17:17

conversations are driven by experiences.

17:20

Even as I say that

17:23

our thinking is not unilateral,

17:25

I know very few black

17:28

women who cannot tell you how

17:31

race and gender, separately

17:33

and combined have impacted

17:36

their life experiences. But

17:39

we know that diversity in

17:41

those kinds of conversations can

17:43

lead for a richer understanding

17:47

of what the law is and how it

17:49

impacts people. And

17:51

I'll go back to Santra Day O'Connor,

17:54

who talked about how Justice Marshall

17:58

influenced her thinking about the

18:00

law and maybe that's how we got affirmative

18:02

action, because she wrote

18:04

the opinion and maybe she was

18:07

influenced by listening to just this

18:09

Marshaw. But if you don't

18:11

have someone bringing that to the conversation,

18:15

not only do you not

18:17

have a chance to change the outcome,

18:20

you don't have a chance to change

18:22

the reasoning. And judging

18:24

is more than about outcomes.

18:27

It's about the reasoning. It's about the

18:29

explanations for the law and telling

18:32

the people why decisions are made

18:34

in the way that they are. And I

18:36

think those need to be filled with experiences

18:39

from multiple perspectives. I

18:42

have to ask you, what's the smoke

18:44

clears and a

18:46

black woman has been confirmed

18:49

to the US Supreme Court, how

18:51

will you given everything

18:53

you've been through, everything you've witnessed, your

18:56

entire set of experiences, how will you feel?

18:59

I will be absolutely elated, absolutely

19:02

elated. Now I typically

19:04

think of myself as a glass half

19:06

full, but one of the things that

19:08

I want to be cautious

19:10

about is that we don't

19:12

start seeing this as well.

19:15

We have one. That's it. That's

19:17

all wherever you know the black women, please

19:19

check the box. This is not about checking

19:21

the box. This is

19:24

about a judiciary

19:26

that represents our country

19:28

and the best in our country

19:30

and the values of equal

19:33

protection under the law and justice

19:36

being blind. And so I

19:38

will relish in that moment, and

19:42

then I will hopefully

19:45

suggest some other ways that we

19:47

can get some of the work done that needs

19:50

to be done. I like that

19:52

attitude, and that's that's what it means to be black

19:54

in this country. In so many ways, we celebrate the

19:56

victories that we struggle for what

19:58

we understand that the work is undone. It's

20:00

understand that you get to keep fighting. That's right, absolutely,

20:04

because it was a pleasure, pleasure, pleasure

20:06

talking to you. Thanks so much for let me hang out

20:08

with you. Oh listen, this was

20:10

great. I couldn't have asked for a

20:12

better partner to have this conversation. Of

20:15

course, Mark Lamont Hill and I don't

20:18

know what the outcome of this historic confirmation

20:20

hearing will be, but we

20:22

have hopes about how the process will

20:24

go and hopes that we can learn

20:26

from the mistakes made throughout the

20:29

history of the Senate and the

20:31

Court. We can't

20:33

shy away from difficult questions about

20:35

what equality under the law means, what

20:38

it really looks like, and more

20:40

importantly, how diversity on

20:42

our courts could change people's

20:45

lives and our

20:47

country. On

20:50

the next episode of Getting Even, you're

20:52

going to hear new revelations about a

20:54

familiar piece of history. When

20:56

you heard Mark and I refer to in our conversation

21:00

the nineteen ninety one Supreme Court nomination

21:02

hearing for Clarence Thomas.

21:05

It was not unusual for

21:07

Clarence to act that way with people and

21:09

especially black women at the commission. Like

21:12

I said before, he was like a fox in a

21:14

hanhouse, and I

21:16

wanted to make the committee

21:18

aware of the fact that you were

21:21

not lying to them or making up

21:23

statements, that this, in fact

21:26

is what was happening at the EOC.

21:29

Later in the season, I'll be speaking with w

21:32

Kamal Bell, Kimberly Crenshaw,

21:35

Nicole Hannah Jones, Misty

21:37

Copeland, and many others

21:39

about the realities that keep

21:42

us up at night and what

21:44

it takes to get even. What

21:47

we're looking for is outcomes.

21:50

We want results, measurable

21:52

outcomes in the way that people live

21:54

every day. Getting

22:06

Even is a production of pushkin in this Streets

22:09

and is written and hosted by me Anita

22:12

Hill. It is produced by Molaborg

22:14

and Brittany Brown. Our editor

22:17

is Sarah Kramer, our engineer

22:19

is Amanda kay Wang, and our

22:22

showrunner is Sasha Matthias.

22:24

Luis Gara composed original

22:26

music for the show. Special

22:29

thanks to Vicki Merrick for her help

22:31

with this episode. Our executive

22:33

producers are Mia Lobel

22:36

and le tal Malaud. Our

22:38

director of Development is Justine

22:40

Lane. At Pushkin

22:43

thanks to Heather Fane,

22:46

Carly Migliori, Jason Gambrel,

22:49

Julia Barton, John Schnars,

22:51

and Jacob Weisberg. You

22:53

can find me on Twitter at

22:56

Anita Hill and on

22:58

Facebook at Anita

23:00

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