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Paul M. Collins, Jr discusses the dynamics of race and gender at the Supreme Court confirmation hearings held before the Senate Judiciary Committee.

Image courtesy of interviewee. March 7, 2024

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This video video discusses observations of racial and gender bias in Supreme Court confirmation hearings, particularly highlighting the differences in how male senators question female nominees and nominees of color. The speakers, who are researchers, note that during recent hearings, subtle biases have been observed, such as questioning the competence of female and minority nominees more than their male counterparts.

They ground their analysis in social science research, collecting extensive data from every Supreme Court confirmation hearing since 1939, amounting to over 40,000 statements. They apply ingroup-outgroup theory, which posits that individuals favor those who are similar to them, to interpret the behavior of predominantly white male senators towards diverse nominees.

The researchers found that these biases manifest in the form of different questioning styles, interruptions, and skepticism regarding the qualifications of female and minority nominees. They argue that much of this bias is implicit, but conscious partisanship exacerbates it, especially when the nominee does not share the senator's political or racial background.

To address these biases, the researchers suggest structural reforms, including making senators aware of their biases and implementing staggered 18-year terms for justices to reduce the high stakes associated with confirmations. They believe these changes could foster a more equitable confirmation process and better represent the American populace in the Supreme Court.

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X-TIMESTAMP-MAP:LOCAL=00:00:00.000,MPEGTS=900000

00:00.225 --> 00:03.485
We spent a lot of time thinking about racial

00:03.785 --> 00:05.965
and gender bias in American government.

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And Christie, Lori and I have also spent a lot

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of time thinking about Supreme Court confirmation hearings.

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And as we were watching Supreme Court confirmation hearings

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over, say, the last 10 years, we started to notice patterns

00:19.225 --> 00:22.925
of behavior that didn't quite sit right with us, right?

00:22.985 --> 00:26.525
In other words, we thought that

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what we were observing were subtle forms of bias.

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And, and sometimes this comes up in really innocuous ways.

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And, and so for example,

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Senator John Kennedy asked then nominee Amy Coney Barrett,

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who does the laundry in your house?

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And this seems like a really lighthearted moment in a

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confirmation hearing.

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But if you think about it in the context of gender bias,

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you, you start thinking, well,

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why didn't Neil Gorsuch get that question?

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Or why didn't Brett Kavanaugh get that question?

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Kavanaugh and Gorsuch both appointed

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by former President Trump have almost identical backgrounds

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as Amy Coney Barrett.

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Yet that question was reserved for a woman.

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And when we thought about this,

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we also started notice some sort of heavier types of bias.

01:15.665 --> 01:18.765
And so, for example, we were picking up on patterns

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that white male senators were treating female nominees

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and nominees of color differently.

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They seem to be questioning their competence more.

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They seem to be more skeptical of that.

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And so we set out in this book to, to ask the question,

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is this actually happening?

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And so we employed rigorous social science techniques

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to get at that very question.

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We're looking at Supreme Court confirmation hearings in

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front of the Senate Judiciary Committee.

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And you know, this is a type

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of job interview, basically, right?

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It's probably the most high profile job interview you could

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conceivably imagine.

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But it really is a, it's a type of job interview.

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And so during these hearings, nominees testify in front

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of the judiciary committee for days on end, right?

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And they're basically there to prove

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that they deserve a position on the highest court in land.

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And so that's the sort of setting

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by which we're looking at this.

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Um, now we think that these hearings are a particularly

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interesting setting for investigating racial and gender bias

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because they're so high profile.

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Millions of Americans tune in to gavel

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to gavel coverage of the hearings.

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Millions more follow the hearings on social media,

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on the nightly news, on the radio, on the internet.

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We talk about them at dinner with our family and friends.

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And so it's interesting to think about racial

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and gender bias happening in such a high profile setting.

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So the way we set out to systematically investigate this,

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we collected data on every question asked

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and every answer given

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At every hearing throughout American history.

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So these hearings start in 1939,

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and the most recent hearing, was that of Justice

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Kaji Brown Jackson in 2022.

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So this is an am a huge amount of data.

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We have over 40,000 statements.

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Um, and then what was the real challenging part

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of doing research in this area is conceptualizing

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how you might measure these sometimes very subtle forms

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of bias whenever you're talking about such

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high profile events.

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And, and you're thinking that, you know, you,

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you can observe these patterns of bias,

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but sometimes it's hard to articulate exactly

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what you're observing.

03:40.905 --> 03:43.805
And so that brought us into the literature,

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which is a really interdisciplinary literature

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about implicit bias.

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And we started thinking about the circumstances

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under which you might notice, for example,

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that white male senators are asking different types

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of questions of nominees of color or, or of female nominees.

04:02.305 --> 04:04.645
And so we landed on a few key metrics.

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So we're looking at things like questions of competence.

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We're looking at inter interruptions.

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We're looking at the ways

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that senators frame nominees of color and female nominees.

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In other words, the type of tone that they're using

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and the types type of words that they're using.

04:22.385 --> 04:25.085
We plug in theoretically to this very vast,

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very interdisciplinary literature on

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ingroup outgroup theory.

04:29.625 --> 04:31.845
And this is really intuitive,

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which is part of its power.

04:33.785 --> 04:37.765
And so the idea is that people tend to favor members

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of their ingroup,

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and they sometimes disfavor whether explicitly

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or implicitly members of their outgroup.

04:46.105 --> 04:48.765
And so this ingroup outgroup, it can mean a lot

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of different things, right?

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So you could conceptualize your in-group as people that root

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for your favorite sports team

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or people you went to college with,

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or it could be something like the way we think about it,

05:01.335 --> 05:04.485
which is racial and gender in groups and out groups.

05:05.265 --> 05:09.205
And so we tapped into this vast interdisciplinary

05:09.685 --> 05:13.005
literature, and we started thinking about how it applies

05:13.065 --> 05:15.845
to the context of confirmation hearings, again,

05:15.845 --> 05:17.845
which are basically job interviews.

05:18.425 --> 05:20.805
And what we found is that there's a very,

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very large literature that shows that

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in group bias is particularly strong in a

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evaluative settings.

05:28.025 --> 05:31.765
In other words, when people from an ingroup are evaluating

05:31.765 --> 05:34.965
people from an outgroup, you tend to see that type

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of bias really manifest itself.

05:37.585 --> 05:41.205
So we adapted this theory to understand the dynamics

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of Supreme Court confirmation to set the table, so to speak.

05:45.145 --> 05:47.845
We have to think about what the Senate Judiciary Committee

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looks like, and throughout American history

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and to today, it's been absolutely dominated by white.

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And we also have to think about

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What the US Supreme Court,

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and to a lesser extent other federal courts in America look

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like they've also been dominated by white men.

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So that leads us to, to reach the conclusion,

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which is hardly a stretch that, you know, the ingroup

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for these white male senators are other white men.

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In other words, when they think about

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what a United States Supreme Court justice looks like,

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they think about white men.

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And so we're particularly interested in

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how these white male senators treat nominees of color

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and female nomin

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and ingroup outgroup theory would lead us to believe

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that they're likely to exhibit subtle

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implicit biases against these nominees.

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And so, for example, they'll be skeptical

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of their credentials.

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They might be more willing to interrupt these nominees.

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They might ask them questions in areas

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where they think they might, you know,

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have a different perspective than the dominant white male.

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And we think a lot

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of what's going on is probably happening implicitly.

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In other words, that senators are doing this perhaps at

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an unconscious level.

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Uh, I do think that some

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of it is probably happening at a conscious level,

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and this is where partisanship comes into the picture.

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And so we really see this exacerbated when the questioning

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senator and the nominee don't share a

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common partisan background.

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And so, for example, when you have a Republican white male

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senator questioning a nominee of color appointed

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by a Democratic president,

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you've got a couple things going on there, right?

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So the nominee is not in the senator's partisan in group,

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and the nominee's not in the senator's racial in group.

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And so in circumstances like that, we tend to observe

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that senators are kind of rough on nominees, right?

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And, and, and a lot of that is being driven

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by conscious partisanship.

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Um, it's where you see the race

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and gender dynamics come into the picture where things tend

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to be more subtle.

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And so there was a time in American history

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where senators, some senators were explicit about

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not supporting nominees of color

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or not supporting female nominees.

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That era is largely bygone.

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And so what we're generally looking at are these subtle

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forms of bias creeping in probably largely unconsciously,

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especially with things like interruptions,

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which happen all the time.

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But we may not be thinking about the consequences

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or how that looks.

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And the Supreme Court has been an unrepresented institution

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in American government, particularly

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with regard to race and gender.

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It's been changing rapidly.

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But you know, we have the most diverse United States Supreme

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Court in American history.

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But even,

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even today's Supreme Court is hardly representative

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of the American public.

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And what's interesting about this is

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that the Supreme Court in America makes these grand

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decisions, right, with respect to what schools look like,

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with respect to whether or not people have

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with reproductive autonomy, with respect

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to the safety when you're walking down the street

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or your child is going to school.

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And more

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and more it's become less representative of, of, you know,

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sort of core American values.

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And so I think it's a good thing

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that we're putting a spotlight on an

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unrepresented institution.

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I think it's a good thing

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that we're thinking about the obstacles that women

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and people of color who might improve decision making on the

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Supreme Court face.

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It's tough because as I said, a lot

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of this bias is implicit.

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So it, so it's unconscious a lot of the time.

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And so the first proposal we have is

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to just make senators aware of it.

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And so it's doing things that we're doing right now, right?

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It's talking to the media,

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it's sharing our research findings with other academics

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with a broader public.

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And so it's important to bring attention to this type

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of bias in order to, to, start

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to at least have a conversation about reducing it.

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We also think it would be useful

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to call out the bias when it happens.

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And so, you know, we're sensitive to

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who exactly might be called on to call out the bias.

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Um, in other words, we don't wanna put it on female senators

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and senators of color,

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but there are examples in the past of, of, for example,

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Patrick Leahy, from Vermont.

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He was a very prominent member of the Judiciary Committee

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stopping senators in their tracks

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and saying, Hey, I've observed

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that every time we have a female nominee in front of us,

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you keep on interrupting her.

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You know, why is it that we do that, in particular

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with female nominees?

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I also think the media

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and non-governmental organizations,

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they could also play this role by bringing attention

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to this type of, you know, interruptive behavior

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to these questions of competence that seem to be

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targeted towards women and people of color.

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You know, that being said, we tend to think that

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the biggest way to help solve this type

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of bias is actually a structural reform at the,

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at the Supreme Court level.

11:20.235 --> 11:23.535
Um, so the way, as you note, you know,

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that we think about the Supreme Court in America is

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that it gets a lot of attention.

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It gets, you know, a lot

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of Americans are skeptical towards the court,

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and these hearings become almost like trial,

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trial by ordeal, right?

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Almost everything stops in America during these hearings.

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We focus our intention because the stakes are so hot,

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because we know that

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who sits on the Supreme Court will matter

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for generations to come. And so if we

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Change that, if we took the heat off the process a little

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bit, we think that we'd end up with a better process.

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And so we join a number of scholars suggesting 18 year terms

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for Supreme Court Justices life tenure.

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It's really an antiquated idea in America.

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It's not serving the purpose that it was originally,

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intended to serve.

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And so if you had staggered 18 year terms

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for Supreme Court Justices,

12:21.105 --> 12:23.605
it would take the heat off the process, make it less

12:23.605 --> 12:27.085
of a salient event, it would occur with more regularity,

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and perhaps most beneficially it would better connect the

12:31.725 --> 12:34.125
American people to the highest court in the nation.

Examining Bias in Supreme Court Hearings

00:00:00 - We spent a lot of time thinking about racial and gender bias in American government. And Christie, Lori and I have also spent a lot of time thinking about Supreme Court confirmation hearings. And as we were watching Supreme Court confirmation hearings over, say, the last 10 years, we started to notice patterns of behavior that didn't quite sit right with us, right? In other words, we thought that what we were observing were subtle forms of bias. And, and sometimes this comes up in really innocuous ways.
00:00:35 - Senator John Kennedy asked then nominee Amy Coney Barrett, who does the laundry in your house? And this seems like a really lighthearted moment in a confirmation hearing. But if you think about it in the context of gender bias, you, you start thinking, well, why didn't Neil Gorsuch get that question? Or why didn't Brett Kavanaugh get that question? Kavanaugh and Gorsuch both appointed by former President Trump have almost identical backgrounds
00:01:06 - Yet that question was reserved for a woman. And when we thought about this, we also started notice some sort of heavier types of bias. And so, for example, we were picking up on patterns that white male senators were treating female nominees and nominees of color differently. They seem to be questioning their competence more. They seem to be more skeptical of that. And so we set out in this book to, to ask the question, is this actually happening?
00:01:40 - to get at that very question. We're looking at Supreme Court confirmation hearings in front of the Senate Judiciary Committee. And you know, this is a type of job interview, basically, right? It's probably the most high profile job interview you could conceivably imagine. But it really is a, it's a type of job interview. And so during these hearings, nominees testify in front of the judiciary committee for days on end, right? And they're basically there to prove
00:02:13 - And so that's the sort of setting by which we're looking at this. now we think that these hearings are a particularly interesting setting for investigating racial and gender bias because they're so high profile. Millions of Americans tune in to gavel to gavel coverage of the hearings. Millions more follow the hearings on social media, on the nightly news, on the radio, on the internet.
00:02:42 - And so it's interesting to think about racial and gender bias happening in such a high profile setting. So the way we set out to systematically investigate this, we collected data on every question asked and every answer given At every hearing throughout American history. So these hearings start in 1939, and the most recent hearing, was that of Justice Kaji Brown Jackson in 2022.

Investigating Bias in Supreme Court Hearings

00:03:14 - We have over 40,000 statements. and then what was the real challenging part of doing research in this area is conceptualizing how you might measure these sometimes very subtle forms of bias whenever you're talking about such high profile events. And, and you're thinking that, you know, you, you can observe these patterns of bias, but sometimes it's hard to articulate exactly what you're observing. And so that brought us into the literature,
00:03:46 - about implicit bias. And we started thinking about the circumstances under which you might notice, for example, that white male senators are asking different types of questions of nominees of color or, or of female nominees. And so we landed on a few key metrics. So we're looking at things like questions of competence. We're looking at inter interruptions. We're looking at the ways that senators frame nominees of color and female nominees.
00:04:20 - and the types type of words that they're using. We plug in theoretically to this very vast, very interdisciplinary literature on ingroup outgroup theory. And this is really intuitive, which is part of its power. And so the idea is that people tend to favor members of their ingroup, and they sometimes disfavor whether explicitly or implicitly members of their outgroup. And so this ingroup outgroup, it can mean a lot
00:04:49 - So you could conceptualize your in-group as people that root for your favorite sports team or people you went to college with, or it could be something like the way we think about it, which is racial and gender in groups and out groups. And so we tapped into this vast interdisciplinary literature, and we started thinking about how it applies to the context of confirmation hearings, again, which are basically job interviews. And what we found is that there's a very,
00:05:23 - in group bias is particularly strong in a evaluative settings. In other words, when people from an ingroup are evaluating people from an outgroup, you tend to see that type of bias really manifest itself. So we adapted this theory to understand the dynamics of Supreme Court confirmation to set the table, so to speak. We have to think about what the Senate Judiciary Committee looks like, and throughout American history
00:05:55 - And we also have to think about What the US Supreme Court, and to a lesser extent other federal courts in America look like they've also been dominated by white men. So that leads us to, to reach the conclusion, which is hardly a stretch that, you know, the ingroup for these white male senators are other white men. In other words, when they think about what a United States Supreme Court justice looks like, they think about white men.

Implicit Bias in Senate Confirmation Hearings

00:06:25 - how these white male senators treat nominees of color and female nomin and ingroup outgroup theory would lead us to believe that they're likely to exhibit subtle implicit biases against these nominees. And so, for example, they'll be skeptical of their credentials. They might be more willing to interrupt these nominees. They might ask them questions in areas where they think they might, you know,
00:06:56 - And we think a lot of what's going on is probably happening implicitly. In other words, that senators are doing this perhaps at an unconscious level. I do think that some of it is probably happening at a conscious level, and this is where partisanship comes into the picture. And so we really see this exacerbated when the questioning senator and the nominee don't share a common partisan background.
00:07:27 - senator questioning a nominee of color appointed by a Democratic president, you've got a couple things going on there, right? So the nominee is not in the senator's partisan in group, and the nominee's not in the senator's racial in group. And so in circumstances like that, we tend to observe that senators are kind of rough on nominees, right? And, and, and a lot of that is being driven by conscious partisanship.
00:07:58 - and gender dynamics come into the picture where things tend to be more subtle. And so there was a time in American history where senators, some senators were explicit about not supporting nominees of color or not supporting female nominees. That era is largely bygone. And so what we're generally looking at are these subtle forms of bias creeping in probably largely unconsciously,
00:08:29 - which happen all the time. But we may not be thinking about the consequences or how that looks. And the Supreme Court has been an unrepresented institution in American government, particularly with regard to race and gender. It's been changing rapidly. But you know, we have the most diverse United States Supreme Court in American history. But even, even today's Supreme Court is hardly representative
00:08:59 - And what's interesting about this is that the Supreme Court in America makes these grand decisions, right, with respect to what schools look like, with respect to whether or not people have with reproductive autonomy, with respect to the safety when you're walking down the street or your child is going to school. And more and more it's become less representative of, of, you know, sort of core American values. And so I think it's a good thing that we're putting a spotlight on an

Addressing Bias in Supreme Court Nominations

00:09:31 - I think it's a good thing that we're thinking about the obstacles that women and people of color who might improve decision making on the Supreme Court face. It's tough because as I said, a lot of this bias is implicit. So it, so it's unconscious a lot of the time. And so the first proposal we have is to just make senators aware of it. And so it's doing things that we're doing right now, right? It's talking to the media, it's sharing our research findings with other academics
00:10:00 - And so it's important to bring attention to this type of bias in order to, to, start to at least have a conversation about reducing it. We also think it would be useful to call out the bias when it happens. And so, you know, we're sensitive to who exactly might be called on to call out the bias. in other words, we don't wanna put it on female senators and senators of color, but there are examples in the past of, of, for example,
00:10:33 - He was a very prominent member of the Judiciary Committee stopping senators in their tracks and saying, Hey, I've observed that every time we have a female nominee in front of us, you keep on interrupting her. You know, why is it that we do that, in particular with female nominees? I also think the media and non-governmental organizations, they could also play this role by bringing attention to this type of, you know, interruptive behavior
00:11:04 - targeted towards women and people of color. You know, that being said, we tend to think that the biggest way to help solve this type of bias is actually a structural reform at the, at the Supreme Court level. so the way, as you note, you know, that we think about the Supreme Court in America is that it gets a lot of attention. It gets, you know, a lot of Americans are skeptical towards the court,
00:11:36 - trial by ordeal, right? Almost everything stops in America during these hearings. We focus our intention because the stakes are so hot, because we know that who sits on the Supreme Court will matter for generations to come. And so if we Change that, if we took the heat off the process a little bit, we think that we'd end up with a better process. And so we join a number of scholars suggesting 18 year terms
00:12:31 - It's really an antiquated idea in America. It's not serving the purpose that it was originally, intended to serve. And so if you had staggered 18 year terms for Supreme Court Justices, it would take the heat off the process, make it less of a salient event, it would occur with more regularity, and perhaps most beneficially it would better connect the American people to the highest court in the nation.

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