Tears of Justice

In “A League of Their Own,” a 1992 film about a woman’s baseball league, a tough-minded manager explodes in anger at one of his players. She starts sobbing because he chewed her out for a bad play, but he has no sympathy: “There’s no crying in baseball,” he screams.

That may be an accurate rendition of the norms of sport, but in judicial confirmation hearings, crying — by men and women — does happen, as we were reminded this week.

The moment when Ketanji Brown Jackson’s eyes moistened during her appearance before the Senate Judiciary Committee was a welcome, moving, and important interlude from the aggressive inquisitions of judicial confirmation hearings. She humanized what otherwise has become an increasingly embarrassing charade.

But this was not the first instance of crying in a recent Supreme Court confirmation hearing. Recall then-Judge Brett Kavanaugh’s tears four years ago in the aftermath of Christine Blasey Ford’s allegations — authentic and credible in our opinion — that he sexually assaulted her.

Kavanaugh’s tears were the messy kind. As The New Yorker put it at the time, his voice “broke sharply up a couple semitones while his mouth curled down at the corners … If he would get to don his black robe, he’d do it weepily.” 

The aspiring justice cried at the prospect of seeing his life dream disintegrating before his eyes. His tears combined what The New Yorker called “the postwar attitude that men should be in touch with their feelings … with the intrinsic American ideal of white male privilege.” 

Former President Trump, who nominated Kavanaugh, was notoriously unsympathetic to any display of weakness. Trump, who once said, that “The last time I cried was when I was a baby,” stood by his crying nominee nonetheless.

It wasn’t long after Kavanaugh brought crying to the confirmation process that another of Trump’s judicial appointees followed suit. In October 2019, federal appeals court nominee Lawrence VanDyke broke down during his confirmation hearings, reacting to an American Bar Association letter opposing him. That letter said that the nominee was “arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice including procedural rules.” But that wasn’t what made VanDyke sob. His crying began after a soft ball question from none other than Sen. Josh Hawley (R-Mo.), one of Judge Jackson’s most aggressive interrogators. Hawley offered Van Dyke the chance to comment on the part of the ABA letter that said people who had worked with him questioned whether he “would be fair to persons who are gay, lesbian, or otherwise part of the LGBTQ community.”

This nominee, like Kavanaugh before him, responded to a charge of bias with a quivering lip. He proclaimed through his tears that it was a fundamental belief of his that “all people are created in the image of God. They should all be treated with dignity and respect.”

VanDyke ultimately was confirmed to his current position as a judge on the Ninth Circuit Court of Appeals.

Unlike Kavanaugh and VanDyke, what we saw this week from Judge Jackson was not a person of privilege breaking down in the face of potentially career ending charges. Nor did we see a performance of weeping as a tactic to face down criticism or doubt. Instead, Jackson was reacting to praise, to affirmation.

On Wednesday, during Sen. Cory Booker’s (D-N.J.) now-viral “I refuse to have my joy taken away” moment, Jackson wiped her eyes, notwithstanding her remarkable discipline over three days of grueling and often unfair examination. 

Booker elicited tears when he spoke of Jackson’s having reached this moment in the face of all the obstacles put before her and her family, including the fact that a generation ago, it would have been illegal in many places for her to have married her white husband.

“I know what it takes to get here,” the Senator said; he was paying tribute not only to Jackson but to her accomplished parents, sitting in the audience.

As Booker spoke, Jackson’s tears broke through the steely resolve she had maintained in the face of the Republicans’ absurd and demeaning “soft on crime” and Q-Anon pedophile messaging about her completely standard sentencing in child pornography cases.

Judge Jackson’s tears registered the pain borne by those who have been the object of both race and gender prejudice.

Perhaps that is why the judge also choked up when she told of being encouraged as a first year student at Harvard by another Black woman who uttered as she passed the future judge “persevere.”

The Washington Post reports that some Black women viewed Judge Jackson’s display of emotion “as a powerful moment of vulnerability amid a grueling two days of questioning.” The newspaper quoted one Twitter user who wrote that “‘she deserved to shed tears because she, like all Black women, is human.’” 

This country needs Judge Jackson’s humanity as well as her off-the-charts intelligence, temperament, dedication and what American Bar Association leaders praised on March 24 as “brilliant,” “top-rate,” and “a judge without bias.” We will all be well served by a justice who can be moved by struggle and pain as well as by the exciting, life changing possibilities that her elevation to the Supreme Court would open up for those who now might dream of following her.

In “Where Do Black Mothers Go to Cry,” Kelly Glass captures the human dilemma that she and other black women like her face. Glass writes, “I cried for the grandmother I never mourned. I cried over my fears for my black son in a climate that is hostile for him. I cried because I was expected to be strong, and strong women do not move people with tears. Strong black women must find spaces where they can cry, laugh, scream and heal.”

During this week’s confirmation hearing, Sen. Booker and Judge Jackson showed that the Capitol could be a place for crying, laughing and healing.

America — especially white America — has much to learn from them both.

Austin Sarat (@ljstprof) is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. The views expressed here do not represent Amherst College. He’s the author of Gruesome Spectacles: Botched Executions and America’s Death Penalty.

Dennis Aftergut is a former federal prosecutor, currently of counsel to Lawyers Defending American Democracy.