Anita Hill on the Supreme Court’s future—and its past

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Brittany Packnett Cunningham Hey, y’all. It’s Brittany. So we are in the beginning of March, which is of course the start of Women’s History Month and the end of Black History Month. That transition is always so fascinating to me, especially when it feels like the title of that groundbreaking Black women’s studies book: All the women are white; all the men are Black; But Some of Us Are Brave. In truth Black women are often left out of both of these conversations. Black History Month will often focus on men. Women’s History Month will be all about white women, but we live at the intersection. This year the intersection has a little bit of a different meaning and we find ourselves honoring the nomination and potentially soon the confirmation of the first Black woman to the Supreme court.

Doing that it’s also bittersweet because what of the Black women first, who shouldn’t have been first at all? Because the first should have been a long damn time ago. What of all of the women who aren’t white and all the Black folks who aren’t men. It is always time to listen to us and to ensure that collectively we take our rightful place in history because after all there is no history worth printing without us. We are UNDISTRACTED.

On the show today, a very special guest. I’ll be talking to Professor Anita Hill about her work as an author, a lawyer, and now a podcaster with her new show,  “Getting Even.” 

Anita Hill: I’m not getting even with anyone in the sense that it’s not about revenge. It is about equality. 

Brittany Packnett Cunningham That’s coming up, but first it’s the news. There’s been a lot of news this week. The United Nations released a new climate assessment that reports that by 2030, more than 100 million Africans will be exposed to sea level rise. During the State of the Union on Tuesday, Biden got a standing ovation from Republicans as he called for funding the police.

That was fun. And Russia is now targeting civilian infrastructure in its attack on Ukraine. And the majority of Ukraine’s more than 800,000 refugees are women and children. And also six days ago, something historic happened. President Biden nominated Judge Ketanji Brown Jackson to the Supreme court.

She would be the first Black woman to serve on our highest court in its 232-year history. I wanted to unpack this moment and do something a little different this week. So I called one of the smartest people I know: Josie Duffy Rice. Josie is a graduate of Harvard Law, a legal podcaster, and a journalist who reports on the law, prisons, and justice.

Josie Duffy Rice I’m thrilled to see her on the bench. It’s wild just knowing the history of Black female lawyers in this country that we’re on our first one, almost 300 years into our founding. 

Brittany Packnett Cunningham Back in high school, Judge Jackson told a guidance counselor that she wanted to go to Harvard. The counselor warned her not to set her sights so high.

Turns out that advice aged very poorly. She went on to go to Harvard for undergrad and law school and to be the editor of the Harvard Law Review, a prestigious position held by other folks like Barack Obama and Ruth Bader Ginsburg. No big deal. Judge Jackson is exceptionally qualified. She clerked for Justice Stephen Breyer on the Supreme Court, whom she’s been nominated to replace. 

She’s also served on the DC Court of Appeals, probably the second most important court in the country after the Supreme Court. And there’s something else. 

Josie Duffy Rice  She does have some career history and some personal qualities that really make her perfect for the Supreme Court. And those include the fact that she’s a former public defender. 

Brittany Packnett Cunningham Public defenders of course, are appointed to represent people that cannot afford lawyers. 

Josie Duffy Rice When you have been accused of a crime, it is you versus the entire government, because that is what the prosecution represents. That includes defendants who have done horrible things, because if you don’t protect everybody, you protect nobody. And that is the bottom line of what the role that a public defender plays.

Brittany Packnett Cunningham If confirmed, Judge Jackson would be the first ever public defender to sit on the Supreme Court. Her experience includes being appointed to defend a Guantanamo Bay detainee and serving on a commission about inequality in sentencing. Josie says that work with defendants is important. 

Josie Duffy Rice There are very few people that our Constitution singles out as necessitating particular protection. The foundation of our Constitution is “all people are created equal. All people have rights.” But there are some places, throughout the Constitution and the Bill of Rights, where we articulate that certain people in certain groups deserve enhanced protection because of the danger they face by state power. One of those groups is defendants. 

Brittany Packnett Cunningham So, this is the thing that people are using to smear Judge Jackson and stand in the way of her confirmation. Things like she represented a terrorist against the US government. But Josie points out that that is exactly who we should want sitting on the highest court in the land.

Josie Duffy Rice It was her job. It is a job that’s enshrined in the Constitution. It is a job that the Supreme Court has decided is a necessary, critical job to people ensuring that they have the rights that the Constitution lays out for them. And not only that, it is a job that should really resonate with conservatives in this country that are worried about Big Government.

These are the same people that should be cheering her. Here’s someone who repeatedly stood up and tried to protect regular people from the tyranny of  government. If we were talking principle, we would be talking about an entirely different Republican party 

Brittany Packnett Cunningham An entirely different party. Now, if she does get confirmed, it’s not that Judge Jackson will change the balance of power on the court.

She’ll be joining a court with the majority of six conservative judges. That means she’s going to be on the losing side of a lot of arguments, but Josie points out there’s still important work that she can do. 

Josie Duffy Rice I think we’ve seen right in the past couple of years, Sotomayor and some other justices in dissents really articulating the issues that we in the more general public believe matter.

And even if they don’t control Supreme Court doctrine moving forward on every issue. To see that, to get a decision and look at the dissent and see someone say like, this is actually about race. Or this is actually about class and here’s some things you should consider. It matters. It matters in terms of public consensus.

It matters in terms of seeing someone in a position like that—probably the most elite position one can be in in public life. 

Brittany Packnett Cunningham Y’all know I always say representation isn’t everything and—not but—bringing a grounded perspective to the court of someone who’s represented people who’ve had no one else to advocate for them, someone who was told she wasn’t good enough to go to Harvard, that could be a gift to all of us. 

Josie Duffy Rice The impact is huge. It’s not everything. It’s not even enough, but it is something. 

Brittany Packnett Cunningham  You can hear Josie Duffy Rice on the podcasts “What a Day” from Crooked Media and “Justice in America.” 

Coming up, I’ll be talking to Professor Anita Hill about how the nomination of Judge Ketanji Brown Jackson should be just the beginning of change in the federal judiciary, right after this short break.

And we are back. Back in 2020, right before the world shut down, The Meteor hosted In Love and Struggle, a theatrical production sandwiched intentionally between the end of Black History Month and the start of Women’s History Month to highlight the triumphs and the trials of Black women. Backstage was buzzing with legit feminist royalty, like Gloria Steinem stopped through just to say, Hey. And I met one of my heroes, the Professor Anita Faye Hill.

You may know the story of how the world met Professor Hill in 1991. She testified during the Supreme Court confirmation hearings that the nominee Clarence Thomas had sexually harassed her repeatedly while they worked together at the Equal Employment Opportunity Commission. The hearings forced Professor Hill to put painful parts of her life on display for a committee of 14 white men and a world hostile to Black women.

Clarence Thomas denied the accusations and was confirmed anyway. White folks attacked her credibility. And some Black men—Black ministers in particular—came for her as if Thomas was the one who needed protecting and not her. And after the hearings, she received hate mail and death threats. She also got letters from women all over the world, thanking her for standing up.

And she’s the reason many of us even learned what sexual harassment was. And it all happened when she was just 35 years old. At this relatively young age, she carried all of us on her back. No one would have blamed Professor Hill for going back to a quiet life, but instead she’s used her prominence to lean into an intersectional critique of our legal system.

She’s written three books, including the recent Believing about gender based violence, chaired a commission investigating abuse in Hollywood, and the first episode of her new podcast “Getting Even” is out now. I spoke to Professor Hill before Judge Jackson was nominated, but there was already plenty for us to discuss 

Brittany Packnett Cunningham Professor Anita Hill. This is such an immense honor for me. We’ve shared space before, but thank you, thank you so much for having this conversation. 

Anita Hill Oh, listen, I am very excited to have this conversation with you. I just feel like there’s this electricity in the air every time I think about the moment in history that we’re about to approach, so ready to get started.

Brittany Packnett Cunningham I love it. And, you know, before we dive into all of those electric things, I mean, we’ve got a Supreme Court justice nomination. We’ve got your new podcast to talk about, but we also have something very special in common because we just shared an episode of “Finding Your Roots” together. Did that blow your mind like it blew mine? Because I’m still just on such a natural high coming off of.

Anita Hill Oh, well, every time I start to think about anything that’s a distraction or a challenge, I think about that episode. I think about my great, great grandparents and my grandparents and you know, my family and it just filled me with pride.

And I was thinking about your reaction that you are watching your episode or your part of the episode made you feel more empowered. 

Brittany Packnett Cunningham Yes. I share that feeling. I’m with you. I’ve never felt quite so empowered and on fire for all the good things. Right. Knowing where I came from. And you, your legacy is so rich.

I was watching that episode with just as much interest in your background as I was in my own. You’re the youngest of 13 children you grew up in, in Oklahoma, but you said something that really struck me. You said that your mother was encouraging you to go to college, to prepare for a future that didn’t exist.

And that she was working based really on this imagination of what the future could be like. I just found that so incredibly moving. 

Anita Hill Actually her father was born really at the cusp of freedom. And so slavery was just not a remote part of our history. It’s really part of the lives of people who, in terms of my mother, who I know, and whose lives were touched by slavery and in the years directly after slavery, trying to find out what freedom and inequality really meant. And that’s what they were all trying to work it out. 

People didn’t even have a clue as to exactly what it would mean for them, but then for her to take that one step further and say, well, even though I didn’t get an education and that that’s really where it was coming from. She wanted one and she didn’t get it. And she said something that was really about who she is as a woman and who she was as a Black woman. She said I was having children when I should have been going to school. And unlike some people who might’ve thought, well, I didn’t get an education and therefore my children don’t need an education.

She was just the opposite. She was, I want them to have what I didn’t have and to be able to really perform and achieve in a world that hadn’t been promised to them. But that she would hope—and I think it was a combination of imagination and faith—that allowed her to believe that that world was coming and that her kids were going to be ready for it.

Brittany Packnett Cunningham That’s right. Not just that that world was, uh, possible, but that, that world was actually coming and that you all were going to be ready for it. Am I right that you’re thinking a lot about your mother these days. I know you had a USC event last fall, and you talked about her and choosing that conference date falling intentionally on her birthday.

Anita Hill Yeah, I think about her so often I think about both my parents and, uh, and of course we can see them in some ways through clearer our eyes as adults and having gone through many of the stages in life that they had gone through. When you’re a child, you don’t necessarily think about, you know, all of the challenges of adulthood and they have regular challenges of adulthood, as well as raising children in Jim Crow. 

And so I think about them often as I think about the work that I do today, because even though the times are different and the opportunities are different, the challenges still exist. And so, I’m all the more emboldened and empowered to keep pushing against those challenges and doing what I can to eliminate them.

Brittany Packnett Cunningham Thank you so much for sharing that with us. I know it’s deeply personal. And as you take the example of your mother and your ancestors with you into your work, I would love to talk about what’s new for you. And to be very clear, you’ve got plenty on your plate, right? You are a world renowned lawyer.

You’re an author. You are an advocate against gender violence, and now you are joining the ranks as a podcaster. Your show has the best title. Okay. It’s called “Getting Even.” I got to know Professor Hill; who came up with that and who are you getting even with?

Anita Hill I’m not getting even with anyone in the sense that it’s not about revenge.

It is about equality. And there are so many different ways that we are treated unequally in society that I wanted us to think about what it would take to get us all  even—to level the playing field for everyone on any number of fronts where we see inequalities today. 

Brittany Packnett Cunningham I love it. It is spicy. You know, I have plenty of people that I actually want to get even with, but that’s—you’re better than me.

That’s why you should be the host of that podcast—cause they’d be calling me Professor Petty. Okay.  

Anita Hill Well, they may be calling me that, too. 

Brittany Packnett Cunningham Listen. But you are Professor Powerful, right? And these are really critical conversations to be having. I’m curious, who you’re interested in having on the show. Are there any dream guests for these conversations? 

Anita Hill Well, I have had a lot of dream guests so far. You know, I have had Misty Copeland speaking to us. Kimberlé Crenshaw, Marc Lamont Hill. I’m speaking with Thelma Golden. You know, the guests lineup really does reflect the fact that there are so many different fronts for us to be thinking about equality.

I grew up in a generation—you’re a different generation than mine—but I grew up in a generation where we were really thinking about equality in a very real and important, but also very basic terms like education. Like housing, like voting and employment. Those are all still really important. But then where, as I said earlier, there they’re all these different kinds of equalities that those categories just don’t line up with.

And you know, when I talked to Kimberlé Crenshaw, of course, we’re thinking not only about education, access to education, we’re thinking about content, what is the content of our education and how does that contribute to our equality? So some people might call these conversations nuanced. I call them critical.

I call them important because it opens our minds to see what is possible if we think broadly about the concept of equity and fairness and justice. 

Brittany Packnett Cunningham You know, I’m looking forward to hearing this entire first season, but I’m especially looking forward to this conversation with Professor Crenshaw, who is of course, one of the pioneers of Critical Race Theory and a former guest on our show.

Not only because you know, we’re existing in this context where 37 states have introduced bills to restrict the learning of true history. But I’m also really interested in this conversation because you and Professor Crenshaw— y’all go back. She was a member of your legal team 31 years ago when you testified in front of that Senate judiciary committee about your experiences with now Justice Clarence Thomas.

And of course she’s the one who coined and popularized the term intersectionality among other things. What does this framework mean to you? Especially knowing that you’ve not only been a witness to it, but you were such a part of its building. 

Anita Hill Well, we actually go back before that—we met at a conference and I knew of course immediately that she was a rock star. And so then of course she was with me in 1991. And I think the whole experience really opened up both of our eyes to the paths that we would be taking in the future to make our ideas much more visible. And instead of just thinking about the law in theory, thinking about how to apply it to make change. 

Brittany Packnett Cunningham So that pathway is intersecting quite uniquely in this moment. What would it mean to you to have a Black woman on the court? And I’m really interested in what you are hoping that Black woman is thinking about as she enters this.

Anita Hill Well first, let me start with that. I know she’s going to be apprehensive. There’s been all kinds of resistance to the idea that it is appropriate for him to think about this position in terms of appointing the first Black woman to the Supreme Court. You know, I have been elated throughout this because I think we can have just a really important conversation about the value that a Black woman can add to the core, the value of diversity altogether and how this should just be the beginning of changing the face of the federal judiciary in particular.

Brittany Packnett Cunningham I know that you were recently on Kara Swisher’s podcast and you all had this kind of hypothetical conversation about whether or not you would accept the nomination if President Biden nominated you. I want to continue that thought experiment for a second. I’m curious, three decades now, after the confirmation hearings for Justice Thomas. What would it mean to you to be his colleague? Have you thought about how you would negotiate that here?

Anita Hill It’s funny because uh, people have posed that hypothetical to me before. And, and I always say, well, you know, that would be awkward. Nevertheless, I would go in knowing that my job is to do my job. It’s to judge and judging is about deliberating and thinking about the reasons that you get to the particular outcome that you got to. So for example, you know, I think about Ruth Bader Ginsburg and how she was thinking about the different ways that employment discrimination laws, for example, impact women. That is part of a responsibility that she took on.

It’s part of a responsibility that Sonya Sotomayor has taken on. And of course I would want to take on that responsibility too, to point out that yes, that there are different ways that we can think about equality. And that’s what I think the court needs. Those ways of understanding what the law’s role is, are shaped by our experiences.

It’s important for us to bring those experiences into the room. The law has to represent the experiences of as many people as possible. Right now, what we have is a federal judiciary that’s predominantly white and male, but I think we cannot help but understand that this over-representation of white males, this over-representation of people whose backgrounds are in corporate law, whose backgrounds are in criminal prosecutions will change the way decisions are being made.

What do we have now are opinions that reflect this corporate and prosecutorial imbalance. And we need to even that out. We need to diversify that thinking as well as the thinking that comes from living life as a person of color and a woman of color in particular. 

Brittany Packnett Cunningham I am struck by this conversation of experience, especially considering just how much has and will be coming up in front of the Supreme Court. As a Black woman myself, I’m thinking about the necessity of that experience in the conversation on voting rights, in the conversation on reproductive justice, in the conversation on LGBTQ rights, right? These are the kinds of perspectives that are necessary. I’m also though very struck—and I say this really personally—about the ways in which you’ve taken great risk to bring your experience into the room. I was a young girl when you did that in front of that judiciary committee. And I have since had conversations with my mother, also a Black woman about her watching you bring that experience and bringing all of us with you when you did that.

One of the people that you experienced in that hearing setting is now the president of the United States, who questioned you during that conversation and really failed to call witnesses to what had happened? What does it mean to you? And I’m just curious how you’re thinking about this pledge, this promise that he has made to nominate a Black woman for this position.

Anita Hill Well, it’s a long overdue appointment; it’s a long overdue thought that someone would intentionally take this issue on. And so I do applaud that; I absolutely applaud that. And I’m hoping it’s going to be the beginning of opening up the federal judiciary in many ways. This gives us an opportunity to really think about what justice means in this country and to envision justice as being a diverse judicial body. I mean, that to me is important. And President Biden has opened us to that possibility of thinking about it, really reckoning with that issue. Now, in terms of bringing myself and my experience in writing the book Believing, my goal was to talk about any number of ways that gender based violence occurs in this country.

I also though wanted for people to understand that different people experience it differently. Yeah. That women of color experience it differently that, and even within the category of women of color. So I really was trying to be intentionally inclusive. You know, I write about the experience of trans women and the gender violence that they experience as I think back on Believing, what I realized is that I wrote this book as if I were only going to get a chance to write one more book and I didn’t want to leave anybody out.

Brittany Packnett Cunningham Wow. 

Anita Hill And so I had gone through and experienced in 1991 when people really didn’t see me or see my experience as significant. And I wanted to make sure in writing Believing  that they saw the experiences of many people who were being harmed in this society, I wanted them to be seen and I wanted them to be understood. And that’s what my work is about. 

Brittany Packnett Cunningham  I find that so, that intentionality so powerful, right? For you to say, if this is the last one that I ever write, everyone has to be included. One of the things that you talk about with regards to your book is about the fact that you started out being patient, thinking that, you know, society would come around to resolving these issues. But now, you say, “you are no longer patient.” Why do you feel this deep sense of urgency? 

Anita Hill First of all, I’m aging. Okay. And I would just 

Brittany Packnett Cunningham beautifully though. 

Anita Hill I would just like for this stuff to happen, the problem to be addressed in my life. I want to see change in my lifetime. I know how important the change that, you know, we were talking about my mother earlier, the change that she experienced in her lifetime and that she saw in her children’s lives after integration.

And my mother witnessed that. And so I think about what I want to do. I want to be able to see that level of change with regard to issues of violence that are experienced by people because of their gender. And that also includes men. 

Brittany Packnett Cunningham That is a powerful, powerful vision, not just for the future, but for the near future.

Right? The immediate future. As I think about change though I’m particularly struck about change in the opposite direction. I’m thinking about how much Americans’ trust in our institutions has waned over the years. You’ve been really open about the fact that Americans lost trust with the Supreme Court after those ’91 confirmation hearings and how that distrust continued to erode the fabric of our society, especially looking at Dr. Ford’s testimony about the abuse that she suffered by Brett Kavanaugh. And he too was confirmed anyway. 

You know, there’s a recent Gallup poll that shows that only 40% of Americans approve of the job the court is doing. And at the turn of the century, it was 80%. It was twice that. I’m curious what you think it will take for us to regain trust in our institutions, or perhaps find that trust for the very first time.

Anita Hill  Well, I believe that the trust has declined because we don’t trust the processes that are in place that put people on the court. If people don’t have trust in our legal system, then they’re not going to engage it. And when it engages them, they’re not going to be confident that there is any fairness.

I think putting in people who have a vision of the law as needing to be deliberately fair, deliberately intentional, like Thurgood Marshall, like Ruth Bader Ginsburg, who have that history, who have that record. I think that will go a long way to restoring some of the trust. 

And then also making an intentional effort to fix our processes. Christine Blasey Ford’s hearing as well as mine really showed the flaws, but there has not been an effort by the chair of the Senate Judiciary Committee to correct those flaws. And so here we are, and we can always hope for the best, but we’d be better prepared to get the best if we pay attention to and change some of the errors that were made in 1991 and repeated in 2018.

Brittany Packnett Cunningham I mean, there are deep, deep, deep flaws in the process to nominate and confirm someone. And then I really can’t even say there are deep flaws in the process thereafter because in a lot of ways, there is not a process or a body that holds the court accountable for ethical behavior. Right. Over the last few months, we’ve seen this reporting from Jane Mayer in the New Yorker detailing Ginni Thomas’s alleged involvement with many right-wing groups. We know the story that came out from The New York Times Magazine published last week, that charges that both Justice Thomas and his wife, Ginni Thomas, are mutually involved in right-wing organizing. Why isn’t there a body that holds the court accountable for this kind of alleged ethical violations that to youe poinr erode, whatever little bit of trust there is in these institutions? And most certainly don’t create any kind of fairness for the people.

Anita Hill  I can only say that as the numbers of people or the percentage of people who have confidence in the court declines, continues to go down, we need to rethink the exemption of members of the Supreme Court from any kind of ethical restrictions.

That’s what we have now. It’s not that nobody is watching; it’s that the Supreme Court members are exempted from review. The only thing that is left, I suppose they can recuse themselves in cases where they may have a conflict of interest. I don’t know that that’s happened self-recusal or impeachment.

And I think that there needs to be some other way of telling the people of the country that Supreme Court justices are accountable. Just like everyone else.

Brittany Packnett Cunningham I mean, you’ve been so generous with your brilliance, not just during this conversation, but really your whole life. I would be remiss if I didn’t take the opportunity to just thank you for your commitment to not just to our gender and to our people, but to the cause of freedom everywhere. I am, because you are. 

And before I let you go, I have to ask about your reference to somebody who I know laid the pathway for the both of us and many more people. You write a bit about the lawyer and activist and poet Pauli Murray whom we both admire. And you quote this beautiful line from her where she says hope is a song in a weary throat. Before we close, what are you weary of and what are you hopeful for now? 

Anita Hill Well, thank you for those kinds words. I think about that quote in this way. You know, I always think of myself as hopeful. And when I read the quote hope is a song in a weary throat. I remind myself to focus on the song part and not the weary part, because as long as we have hope we will have a song. And as long as we can continue to sing that song, then we can push forward. To change. So yes, we get weary and we can’t ignore that and we should have rest and take care of ourselves.

But I think Pauli Murray also wanted us to keep singing, to keep hopeful. 

Brittany Packnett Cunningham Goodness, Professor Anita Hill. I am so grateful that you exist and I’m even more grateful that you spent time with us here on UNDISTRACTED. Thank you. Thank you. Thank you. And we will all be tuning in to “Getting Even.” 

Anita Hill Thank you.

Brittany Packnett Cunningham Anita Hill is a professor of social policy, law, and women’s gender and sexuality studies at Brandeis University; the author of Believing: Our 30 Year Journey to End Gender Violence; and the host of the podcast “Getting Even.”

I asked Professor Hill if there is one song in particular she sings when she’s grasping for that hope. She picked the Negro spiritual turn gospel that doubles as a freedom song “I’m So Glad Trouble Don’t Last Always.”

 Mississippi Mass Choir I’m so glad trouble don’t last always.

Brittany Packnett Cunningham I fully believe that it doesn’t, but it requires our collective effort to bring, to bear the good times, the just times, which means that the abbreviated allyship of a Black or a Women’s History Month simply will not do. The fact is Anita Hill made a life of this work after punishment and public vilification by everyone from the white men of Washington to the Black pastors of our communities, she chose us. She chose me. She chose the work. And if Anita Hill is still going, I have no excuse not to; neither do you. 

That’s it for today, but never, ever for tomorrow. UNDISTRACTED is a production of The Meteor and Pineapple Street Studios. 

Our lead producer is Rachel Ward. 

Our associate producer is Alexis Moore. 

Thanks also to Treasure Brooks and Hannis Brown. 

Our executive producers at The Meteor are Cindi Leive and myself, and our executive producers at Pineapple are Jenna Weiss-Berman and Max Linsky. 

You can follow me at @MsPackyetti on all social media and our team @TheMeteor. 

Subscribe to UNDISTRACTED and rate and review us on Apple Podcasts, Stitcher, or most places where you get your favorite podcasts. 

Thanks for listening. Thanks for being and thanks for doing. I’m Brittany Packnett Cunningham. Let’s go get free.