American Bar Association - Lessons from Judge Ketanji Brown Jackson: How to Confront Bullying and Bias

Judge (soon to be Justice) Ketanji Brown Jackson’s grace under fire as she fended off a barrage of personal and professional attacks during her Supreme Court confirmation hearings exemplifies how women lawyers can advocate effectively for themselves when facing bullying and bias. Politics aside, the Supreme Court confirmation process, which should represent the pinnacle of a legal career, has degenerated as politicians on both sides of the aisle resort to theatrical antics often unrelated to a candidate’s merits. Judge Jackson’s poise and civility in this setting and beyond offer powerful lessons on how women advocates can counter hostility often fueled by misogyny and racism. From Judge Jackson, we can learn to draw on qualities she demonstrated as sources of strength: patience, deliberation, humility, and resilience.

Bullying and Bias in the Legal Profession

Many in our profession, particularly women and others in historically marginalized groups, have faced unwarranted aggressive conduct in the course of our careers. For much of my 40-year career, little was written about this endemic problem until recently. In May 2019, the International Bar Association (IBA) released Us Too? Bullying and Sexual Harassment in the Legal Profession, the results of a global survey on bullying and sexual harassment in the legal profession, with almost 7,000 respondents spanning 135 countries using 6 languages, working in a broad array of law-related settings. The results were disturbing—the data showed that bullying and sexual harassment are rampant in the legal profession.

The respondents, who held various positions in the legal field, were 67 percent female, 32 percent male, and .2 percent non-binary/self-defined. About one-half of female respondents, compared with one-third of male respondents and almost three-quarters of non-binary respondents, reported being bullied in connection with working in the law. The survey did not define “bullying” but instead gave participants a list of options to designate the conduct at issue or to define it themselves. Notably, many of the types of misconduct cited by IBA survey respondents as examples of bullying were on galling display during Judge Jackson’s confirmation process. For example, many of the offending senators, lawyers themselves, ridiculed the nominee, used demeaning language, lodged unwarranted criticism, attempted to peripheralize the judge from other federal judges with similar records, and subjected her to harmful rumors.

Equally troubling in the IBA report is the extent to which respondents observed bullying and the reluctance of targets and witnesses to speak out for fear of retaliation. According to the data, 40 percent of female respondents and 32 percent of male respondents reported observing workplace bullying. The report also concluded that bullying was not reported 57 percent of the time because the perpetrators are in positions of power vis-à-vis their targets, and victims of misconduct fear they will lose their jobs or be ostracized within the profession, jeopardizing future employment. For those who reported bullying, the response was dismal—over 70 percent of those who reported workplace bullying considered the employer’s response insufficient (33.7 percent) or negligible (38.2 percent). Further, 65 percent of people who reported being bullied at work left or have considered leaving their employment. Although there was much media commentary condemning the bullying directed at Judge Jackson, far too many senators stayed mum and did not confront the bullies or they offered only tepid criticism of their cohorts. Even with the eyes of the world watching, the senators’ reactions to this abuse were plainly insufficient or negligible, similar to the IBA findings. In response, Judge Jackson exemplified professionalism by maintaining her composure rather than degenerating into uncivil conduct, however warranted it may have been for her to verbally punch back, given the bullying antics.

The confirmation spectacle was even more troubling in that Judge Jackson faced dual attacks fueled by gender and racial bias. The IBA survey focused solely on bullying and gender, but there are other enlightening sources that assess the impact of race on these issues. In Left Out and Left Behind: The Hurdles, Hassles, and Heartaches of Achieving Long-Term Legal Careers for Women of Color, ABA researchers reported on a study of the experiences of over 100 women of color attorneys who had practiced for 15 or more years. Focusing on the challenges facing women lawyers of color, the ABA report reflects that diverse women endure greater hurdles beginning in law school that persist throughout their careers. They are more likely to consider leaving the profession than their white male and female counterparts as they are not given the same access to plum assignments, client contact, and opportunities for building relationships that are critical to advancement. These issues are particularly problematic in law firm practice at the highest levels where the number of women of color reaching and remaining at the partner level is insultingly low.

It is against this backdrop, as a woman of color facing gender and racial obstacles, that Judge Jackson’s demeanor should be measured and applauded. By exemplifying patience, deliberation, humility, and resilience, Judge Jackson adroitly navigated the land mines she faced to earn our profession’s highest achievement—a place on the Supreme Court.

Patience

During the confirmation hearings, Judge Jackson faced badgering, name-calling, and mischaracterization of her record. She was asked questions focused on select aspects of her long record, compared inaccurately with other federal judges, and subjected to grandstanding commentary that did not appear to have a genuine goal of assessing her qualifications. Despite interruptions and direct attacks, Judge Jackson painstakingly explained her approach to resolving thorny legal issues. She managed to fend off innuendos and outright assaults on her character, maintaining an even temperament when many others would have lost their cool. Despite several senators, notably lawyers, engaging in conduct that many would consider contrary to the letter and spirit of the ABA Model Rules of Professional Conduct and blatantly uncivil, Judge Jackson maintained her dignity.

Nonetheless, it is heartbreaking that a woman of Judge Jackson’s character and intelligence, with a record of stellar lawyering and judicial service, had to restrain herself and endure these indignities to make it through the process. As others have written, Black woman often swallow this bitter pill in order to advance. They are loath to speak out for fear of being labeled “angry”—a common sexist-racist trope directed at those who may not always bite their tongues.  According to one commentator, Mikki Kendall, writing in Time, “For Jackson to reach this place, she has had to weather a lifetime of this treatment and not let it stop her.” Kendall elaborates on Judge Jackson’s patience and the sad lesson it imparts to others who will follow her: “She is the first, she will not be the last, and as with all trailblazers, her impact will be seen in the Black girls and women who too will learn to share their feelings in private and present a calm, composed face in public.”

Unfortunately, this is one of the lessons that women, and more profoundly women of color, learn as they try to advance in the legal profession. We must tolerate delay and suffering without getting angry or upset, we must remain calm when dealing with difficult situations, and we must not complain. Judge Jackson met those standards, but I long for a time when no one has to remain patient and stoic in the face of bullying and bias. Sadly, if Judge Jackson had asserted herself more aggressively (as other nominees have done)—rather than remaining patient—she might have lost the fight to earn the “Justice” title she deserves. Absent more systemic change, women advocates may find that patience is a valuable tool in combatting unfair treatment.

Deliberation

During the hearings, Judge Jackson’s inquisitors attempted to portray her as soft on crime and sympathetic to pedophiles rather than protective of their victims. They mischaracterized her record and deliberately disregarded how her sentencing record compared with that of other federal judges. Her testimony about the child pornography cases—balancing being kept awake at night by the horrors of what she saw with the ubiquity of electronic images—reflects her deliberation in sensitive matters. Even if one disagrees with her decisions, there is no question of her thoughtful analysis of the issues before her. She was badgered to describe her “judicial philosophy” but stood firm in describing her approach as her “judicial methodology,” as reported by  CNN:

“I am acutely aware that as a judge in our system I have limited power and I am trying in every case to stay in my lane,” she said. Describing a three-step process, Jackson said step one is ensuring that she was “proceeding from a position of neutrality,” adding that she clears her mind about any “preconceived notion” for how the case should come out. Step two is taking all the “appropriate inputs” for the case—the arguments, written briefs, hearings, friend-of-the-court arguments, as well as the factual record. The final step is the interpretation of the law to the facts of the case. “This is when I am observing the constraints” on her judicial authority, she said. In doing so, she said she is trying “to figure out what the words mean as they were intended by the people who wrote them,” while taking into precedent into account.

Her authentic explanation of the reflective and considered approach to determining the issues before her demonstrates the caliber of Judge Jackson’s judicial performance. She has delivered and can be expected to deliver on her oath to uphold the Constitution to the best of her ability. As women advocates, we are called upon to advance a particular point of view, rather than a balanced weighing of the opposing position. But in crafting the most persuasive arguments on behalf of clients, we can be most effective if we follow Judge Jackson’s example. We should be deliberative in our assessment of the strengths and weaknesses of our position so that we can best anticipate how to respond to arguments from the other side.

Humility

There were two particular instances during the confirmation hearings where Judge Jackson’s humility stood out. First, in her opening remarks, she introduced herself and her family in a straightforward way. She did not boast about her well-honed juggling skills managing a demanding career, marriage to a doctor who also had a demanding career, and motherhood of two daughters, while also serving her alma mater and her children’s school. Instead of portraying herself as invincible, Judge Jackson was humble. Her self-effacing comments resonated with many professional women. In her words, Judge Ketanji Brown Jackson paused and  explained that she was “saving a special moment in this introduction for my daughters.” With her girls present, she shared: “I know it has not been easy as I have tried to navigate the challenges of juggling my career and motherhood. And I fully admit that I did not always get the balance right. But I hope that you have seen that with hard work, determination, and love, it can be done.” As women lawyers, we understand the tug-of-war we encounter trying to manage demanding careers with parental and other personal obligations. It takes courage and modesty to own up to one’s own limitations, and Judge Jackson did so eloquently and from the heart.

The second example that comes to mind is Judge Jackson’s reaction when Senator Corey Booker welcomed and acknowledged her with respect and pride after she had already endured repeated indignities from other senators. Rather than beaming with pride, which would have been understandable, Judge Jackson discreetly wiped her tears. It is hard to imagine how she felt to hear a few kind words after so much battering.

Self-promotion does not come easy to many women lawyers, and we often face competing expectations. As an associate, I remember male colleagues loudly crowing over the smallest victories and sharing backslapping comradery, while female colleagues hesitated to attract attention. We were criticized for not being confident enough or for failing to tout our achievements. However, when women lawyers do display pride in our work and success, we are as readily criticized for being pushy, arrogant, or boastful. Women are expected to do a delicate waltz to share our success, but perhaps not too loudly. Judge Jackson veered in the direction of modesty over self-promotion. She faced a unique situation that no one else has or will as the first Black woman to be nominated to the Supreme Court in its 233-year history. In this instance, she did not have to announce her stellar record because we were all familiar with it. I hope, however, that her trailblazing will ease the way for other women lawyers to be able to share their success without being stigmatized for not staying in their place.

Resilience

There is one other trait that stands out when reflecting on Judge Jackson’s adroit navigation of the Supreme Court confirmation process: her resilience. Despite the many barbs directed at her during the hearings, Judge Jackson maintained her poise and continued on the course. Her ability to stand firm and remain civil while being battered by bigoted and irresponsible attacks was admirable, to say the least. With so much at stake personally and for generations of Black women who came before her and those who will follow her path, Judge Jackson did not allow the mistreatment to take her down. With each round of “cross-examination” by hostile questioners, Judge Jackson continued to rebound, answering even absurd and inappropriate questions with character. When she joins the Supreme Court as its newest justice, she will need to draw on all of these traits, but her resilience will be of particular importance. Inevitably, she will face tough challenges navigating the politics of her diverse cohorts and likely disappointments with some of the decisions the majority may reach. With so many pinning their dreams on her success, Justice Jackson will need to draw on her resilience to remain optimistic and determined as she enters the most important phase of her life’s work.

Conclusion

It is a disappointment and embarrassment that Judge Jackson had to endure such mistreatment in spite of her stellar and unblemished professional and personal record. The bullying and bias she faced during the confirmation hearings reflect on those who dished it out, while her strength and dignity—her strong showing of patience, deliberation, humility, and resilience—put the bullies to shame. We are fortunate to have Judge Jackson ascending to the highest bench, and we have much more to learn from her.

©2022. Published in The Women Advocate, Spring 2022, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.