It was regrettably predictable that Judge Ketanji Brown Jackson would not get through her testimony before the Senate Judiciary Committee without having to endure a McCarthyist smear from Republicans, and Sen. Ted Cruz (R-Texas) did not disappoint. He took a virtual page from the late Sen. Joe McCarthy’s (R-Wis.) playbook by blaming Jackson for the very existence of library books that he considers politically unacceptable.
For reasons best known to himself, Cruz decided that the first Black woman ever nominated to the U.S. Supreme Court needed to be grilled about what he evidently perceived as a connection to critical race theory — a graduate school discipline lately demonized by Republicans, but that has played no part in Jackson’s jurisprudence or career. As Jackson patiently explained, “I’ve never studied critical race theory. I’ve never used it. It doesn’t come up in the work that I do as a judge.”
That wasn’t good enough for Cruz. Mischaracterizing critical race theory as assuming a “fundamental and intractable battle between the races,” he employed the classic McCarthyite tactic of insinuating guilt by association, in this case bringing up her membership on the board of trustees of the Georgetown Day School.
To Cruz’s dismay, it appears that the venerable K-12 private school – founded in 1945 to provide integrated education, which was then prohibited in the District of Columbia’s public schools – includes lessons about race and racism in its curriculum. And that means, to the inquisitorial mind, that Jackson herself must have some sympathy for critical race theory and its supposed excesses.
To drive his point home, Cruz displayed a stack of books that his staff discovered to be either assigned or recommended at Georgetown Day School. The one he found most “astonishing” was a children’s book by Ibram X. Kendi, “Stamped for Kids,” which is on the “summer reading list” for grades three through five. Having honed his recitation skills by reading aloud from Dr. Seuss’s “Green Eggs and Ham” during a one-man Senate filibuster, Cruz inflected appropriate alarm over a short passage from “Stamped for Children”: “Can we send white people back to Europe?”
Never having previously seen the book, Jackson was unable to point out that Cruz had completely misinterpreted Kendi’s message, which was to show the historical offensiveness of telling anyone in the U.S. to “Go back to where you came from.” Nor did Cruz recognize that a summer reading list would be provided to parents, who of course would exercise supervision of their children’s actual reading. His commitment to parental choice apparently does not extend to books with uncomfortable ideas.
Purging libraries, of course, was the essence of McCarthyism. In March 1953, McCarthy sent his chief counsel, Roy Cohn, on a tour of U.S. cultural center libraries in Europe for the purpose of identifying and removing so-called “communist” books from the shelves.
Predating Cruz’s critical race discoveries by almost 70 years, Cohn found the American libraries to be “fairly teeming with anti-American, pro-Soviet books written by Communists and fellow travelers.” Meeting with reporters in Frankfurt, for example, he triumphantly displayed “The Maltese Falcon,” by the “hard-boiled” mystery writer Dashiell Hammett, as “proof that there were indeed Communists represented in the American library.”
Like Cruz at the Jackson hearing, McCarthy was determined to blame the presence of the damnable books on somebody, anybody, whether or not they had actually been aware of them. He pledged to “pin down” those who were “directly responsible” for “placing the U.S. stamp of approval on a vast number of well-known Communist authors.” Under orders from Secretary of State John Foster Dulles, many books “stocked in our libraries throughout the world” were soon removed.
To its shame, the U.S. Senate indulged McCarthy’s witch-hunts for far too long, including his campaign against disagreeable reading material. McCarthy’s Senate Committee on Investigations unanimously backed Cohn’s finding of “Communist infiltration of our libraries.” To his credit, President Dwight Eisenhower refused to go along. Speaking at the Dartmouth College commencement, he told the graduates, “Don’t join the book burners. Don’t be afraid to go in your library and read every book.”
Somebody on the Senate Judiciary Committee should deliver Ike’s message to Ted Cruz, letting him know that his pitiful rehash of McCarthy’s literary investigations should be relegated to the sorry history where they both belong.
Or perhaps a better-known admonition from the McCarthy era would be even more appropriate. “Have you no sense of decency, sir, at long last? Have you left no sense of decency?
Steven Lubet is the Williams Memorial Professor at the Northwestern University Pritzker School of Law. His most recent book is “The Trials of Rasmea Odeh: How a Palestinian Guerrilla Gained and Lost U.S. Citizenship.”