The Volokh Conspiracy
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KBJ Veers Into RBG Territory With "Hope" Comment About Harris
There was some cross-talk on The View, but Jackson seems to have said that Kamala Harris's nomination "‘gives a lot of people hope."
Last night I wrote that Court watchers could safely skip Justice Jackson's new book tour. My comments were premature. Today, Justice Jackson appeared on The View. If you haven't watched The View (and you would have good reason not to), this program features five female hosts who interview guests. There is often a lot of cross-talk, and it is not always possible to track a clear thread. But there was one colloquy that could be problematic, though I'm not sure that Justice Jackson so intended.
At the 27:45 mark, the segment resumes with a question about Vice President's Harris's nomination.
Sarah Haines: Politics aside, the upcoming election marks another significant milestone for women of color with Vice President Harris at the top of the ticket. One, what do you make of her historic candidacy and as far as potential redos of 2020 go, are you confident our courts will faithfully uphold the votes if contested.
Jackson begins by not actually answering the question asked about the Court, and deftly reframes it to another question that is completely anodyne:
Jackson: I am confident that the Courts will faithfully uphold the law because that is our duty, what we do.
You see what she did? Haines asked about upholding the votes, and Jackson said she would uphold the law. Very crafty. I wonder if that messaging was rehearsed, or done on the fly. I've done a lot of media training, and these sorts of question-reframings are generally practiced.
But then Jackson answered the question about Harris.
Jackson: And I know a little bit about being a first. I think a lot of people were very happy about my appointment in part because they saw it as progress for the country. That there was a time in which black women wouldn't have had this opportunity. And so I am not only so honored but whenever we someone moving into a position where no one has ever been, it gives a lot of people hope.
Was Jackson only talking about herself? Or was she also talking about Harris? If Harris loses, would that be bad for hope?
At that point, Joy Behar, another host jumps in.
Behar: Like Obama is the perfect example.
Jackson: It gives a lot of people hope.
It isn't clear if Jackson was repeating her "hope" line about Obama or about her own "first" or about herself and Harris. I've watched the video a few times, and I can't tell for sure.
Given that this was a fast-moving interview, I would give Justice Jackson the benefit of the doubt. But I think a reasonable person watching this interview could see Justice Jackson as saying that the "first" nominations of Barack Obama and Kamala Harris, like her own nomination, gave a lot of people hope. Hope was a huge theme of Obama's 2008 campaign. Indeed, you might recall the iconic Obama "Hope" poster.
Jackson's comments brings to mind remarks that Justice Ginsburg made in 2016. No, not calling Trump a "faker" and saying she would move to New Zealand if he won. Instead, this was a comment about the other candidate in the race, Hillary Clinton. She told Mark Sherman of the AP:
"It's likely that the next president, whoever she will be, will have a few appointments to make," Ginsburg said, smiling.
Three things jump out. First, pronouns matter. Ginsburg said "she," a clear reference to Clinton. She may have been trying to be coy, but she clearly signaled her preferred candidate. Second, Ginsburg also clearly signaled that she would step down if Clinton was President. Slate aptly observed that Ginsburg "hints she wants Clinton to name her successor." In hindsight, that plan didn't work out. Third, Ginsburg was smiling. Dare I say, she joyful about a Clinton victory? Dare I say, hopeful?
Justice Ginsburg smiled when asked about the prospect of Hillary Clinton becoming President. And Justice Jackson seems to have said the prospect of Kamala Harris becoming President brings a lot of people "hope." And Jackson was beaming widely when she said it.
I'll let others judge how they read this interview. I think the better answer for Justice Ginsburg, and Justice Jackson, would have been "I cannot comment on a political race." This interview was far more problematic than any flag Martha-Ann Alito ever flew. Perhaps Justice Jackson should be grateful there is no enforceable ethics code that could compel her to recuse from all election-related cases.
