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Senator Dick Durbin: It's not easy being first. Often you have to be the best. In some ways, the bravest. Many are not prepared to face that kind of heat, that kind of scrutiny, that ordeal in the glare of the national spotlight. Your presence here today, your willingness to brave this process will give inspiration to millions of Americans who see themselves in you.

Melissa Harris-Perry: Thanks for joining us on The Takeaway. I'm Melissa Harris-Perry, and that was Senator Dick Durbin, chair of the Senate Judiciary Committee, acknowledging the historic nature of the Senate confirmation hearings that got underway on Monday for Supreme Court nominee, Judge Ketanji Brown Jackson.

In many ways, the real action yesterday wasn't happening on Capitol Hill. It was happening on social media. Now, if your timeline like mine is heavily populated by women of color, then you could not miss the Judge KBJ was a full-on legitimate star of the internet. The expressions of empathy from all the working moms when Judge Jackson expressed her love to her daughters, while also acknowledging how hard it's been to balance parenting with the demands of her extraordinary career.

Judge Jackson: I fully admit that I did not always get the balance right, but I hope that you've seen that with hard, determination, and love it can be done. I am so looking forward to seeing what each of you chooses to do with your amazing lives in this incredible country. I love you so much.

Melissa Harris-Perry: The emoji-laden respect for Judge Jackson's statement of judicial independence.

Judge Jackson: I decide cases from a neutral posture. I evaluate the facts and I interpret and apply the law to the facts of the case before me without fear or favor, consistent with my judicial oath.

Melissa Harris-Perry: What caught my eye in the multi-platform metaverse was a little meme of yellow boxes. Now, at first, I got to admit, I thought it was Judge Jackson's Wordle score for the day, which by the way, would be epic. Zoom in and you'll see it's a little different. See, the Washington Post created side-by-side comparisons of the current justices on the court, comparing them with the Judge Jackson on a number of dimensions.

Judge on the Court of Appeals, everybody but Kagan. Ivy League Law School, all but Coney Barrett. Sentencing commission, only the retiring Justice Breyer shares that experience with Judge Jackson. District Court Judge, only Sonia Sotomayor can boast that yellow box right along with KBJ. As for public high school graduate and time as a public defender, Judge Jackson stands alone in those categories. There's one more row, Supreme Court clerk. It's an experience shared by six of the nine current justices. One that Judge Jackson addressed in her opening statement when she thanked retiring Justice Breyer for the experience of serving as his clerk.

Judge Jackson: Justice Breyer in particular, not only gave me the greatest job that any young lawyer could ever hope to have, but he also exemplifies what it means to be a Supreme Court Justice of the highest level of skill and integrity, civility, and grace.

Melissa Harris-Perry: We wanted to go beyond just checking the box to try to understand what it means to serve as a Supreme Court clerk. I spoke with Cecillia Wang, Deputy Legal Director at the National ACLU and Director of the Center for Democracy. Cecillia clerked for Justice Harry Blackmun, working in the chambers of Justice Stephen Breyer from 1996 to 1997.

Cecillia Wang: Basically a law clerk to a federal judge or a justice on the Supreme Court is an all-around assistant to the judge or the justice. You're part of a family of other clerks in the chambers for that justice. At the Supreme Court, in particular, you are helping the judge to think through the issues, you act as a sounding board, you do legal research for most judges and justices.

You are writing what are called bench memoranda. It's a document that helps a judge understand and get a summary of a case before the case is argued by the lawyers who are presenting it. In most cases, you are drafting opinions for the judge or the justice. A lot of it, the thing that doesn't get said is that you're also working in community with other law clerks, both for your own judge and for other judges who your judge is interacting with.

Melissa Harris-Perry: In that community, is the goal to try to figure out what is it that that justice or judge thinks, or is it to actually try to influence what that judge or justice thinks?

Cecillia Wang: Here's the rub, Melissa. [chuckles] The truth is, you approach the job of being a law clerk the same way you approach any job. Of course, you're trying to influence the judge, you're trying to influence your coworkers. You're trying to help your judge influence other judges, whether on an appellate court with their fellow and sister judges on their panel, or in the district court you're trying to influence judges who may sit in review of your judges' decisions.

That's the truth. We come to the job of being a clerk as a human being, trying to be persuasive. Officially, of course, the job is you're there to assist. You're there to be a junior assistant, someone who is doing what your Judge asks you to do in terms of legal research and writing.

Melissa Harris-Perry: I love that your radio kitty just also offered an opinion. That was great.

Cecillia Wang: [laughs] Yes. Muhammad Ali the cat has a lot to say this morning.

Melissa Harris-Perry: Is your cat really named Muhammad Ali?

Cecillia Wang: Yes, he is.

Melissa Harris-Perry: That's so perfect. We should circle it back to a radio kitty at some point.

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Melissa Harris-Perry: How does one end up with a clerkship? I should probably be upfront because I can imagine that there may be a student or two of mine or a former student or two of mine who would laughingly say, "I can't even believe Prof MHP is asking these questions," given that I do tend to try to talk my best students out of law school. I try to encourage them not to go to law school, instead to pursue a career in the academy and all of these kinds of things.

Nonetheless, I lose many, many of my best and most brilliant minds to law school rather than to graduate school. I'm wondering, if I'm thinking about some of those best and brightest students, how do they know if a clerkship is the right thing for them to want, and what does it mean to try to secure one?

Cecillia Wang: Well, it's a bit of a crapshoot actually like any other plum job in any other profession. All kinds of factors play into whether you get that 1 in 500 job. Being a law clerk for a federal judge or the Supreme Court, of course, it's even more competitive and more random. Each human being who is a judge is selecting other human beings to work for them. Of course, it often comes down to connections as many legal scholars and other observers of the legal profession have noted. There's a lot of bias, of course, that comes into play in the selection of federal judicial clerks.

You do see certain justices and judges making a really concerted effort to overcome those biases in that institution, in the federal judiciary. My old boss, Justice Breyer, who's now retiring is well known for hiring a diverse slate of clerks every year. I was, of course, an extra fifth clerk for Justice Breyer because I was hired by Justice Blackmun. We had a diverse group.

There are all kinds of diversity that still need to be addressed. Some judges are better at this than others, some judges care more about this than others. Generally, as things stand now, as things have stood historically, if you went to Harvard or Yale and did very well there, and you have good connections with the right professors who know the justices on the Supreme Court, that's the well-worn pathway to getting that clerkship. Hopefully, that will change, but that's the way it is.

Melissa Harris-Perry: You've talked a little bit here about diversity when you're talking about being in that community and both learning from and seeking to influence and obviously engaging, coming out of top schools, all of those kinds of things. What is all those pieces that you've given us here, what does that mean for women of color?

Cecillia Wang: I think it means something different to each one of us. You bring what you bring to the job, to the table, the literal table, where you're sitting down with the Judge you're working for and with your fellow clerks. Just to bring it back to the personal for me, I'm someone who my parents are immigrants. I literally didn't know any lawyers. I went straight through from being an undergraduate at Berkeley, which was my local university here in the Bay Area, to going to law school and then went straight through to clerk for a judge on the Ninth Circuit, Bill Norris, and then I clerked on the Supreme Court.

I have to say, I'm very upfront about this when I talk about this with law students, I was lost and bewildered, Melissa. I went to that job feeling that I didn't belong there, that everyone else seemed to know what they were doing. I was there with people who were second and third generation law clerks. I was there with people who were second generation Supreme Court law clerks.

It was hard and I had to come at it really finding my community, and my community while clerking really was other women. Other women of color, other women who were on a pathway in their legal careers heading towards civil rights jobs, towards human rights jobs, toward using the law as a tool to really achieve something in particular. That's the way that I made my way through the thicket as a very young, recent law school graduate.

Melissa Harris-Perry: I so appreciate you being transparent about that sense of being lost and bewildered. I think there's a way that we can tell these stories so there are just these individual folks who just get it, they spring up, they're well seen by their colleagues rather than understanding that even making it to a place like our current nominee, Judge Jackson, undoubtedly meant many times of wondering whether or not you belonged and whether or not there was a pathway for you.

Cecillia Wang: Yes, that's right. The truth is, I suspect that some of our fellow clerks, some of our fellow lawyers who are not women of color, even those folks who I looked at with fear and with self-doubt, who are second and third generation lawyers and third generation law clerks, I suspect some of those folks too came to the workplace with the same self-doubt, the same fears, the same desire to get it right, but it is hard. You have to come to the job.

I always tell this to students that I interact with at work, "Come to work knowing that everybody is coming as a human being." Everyone, no matter how they're presenting themselves individually in the workplace is coming to the job on an equal footing with you, because when you're in that moment, when you're sitting down at the table with a Supreme Court justice you're working for after you've stayed up all night trying to write this memo for him or her, we're all in the same boat. Just forget about everything that's come up to that moment. Those things matter, of course, when you sit down in any interaction, everything that's come before comes into that conversation with you, but for your own good mental health, I like to try to focus on that moment.

Melissa Harris-Perry: I'm interested, again, as you talk about the question of diversity and also focusing in on this moment, I'm wondering if you have insights even if they are somewhat projected, but I'm wondering if you have insights either from your own experiences or from what you've heard about what Judge Jackson is doing in this moment. Obviously, she is very much undoubtedly focused on responding to these questions, thinking about this particular gauntlet that she will walk during the course of the few days, during the confirmation hearings, but she is going ahead. She is the first Black woman in this role, and other than Sonia Sotomayor, the only woman of color to stand in this particular position. I'm wondering, again, how some of her previous experiences may have readied her for this.

Cecillia Wang: I think I'll say three things. The first is, no one has ever been more prepared, no one has ever been more well qualified to be a Supreme Court Justice than Ketanji Brown Jackson. She has an extraordinary track record. In many ways it is a very familiar track record, of course, having gone to Harvard, having clerked for Justice Breyer, having been a judge already in both the Federal District Court and the Federal Circuit Court. She's someone who has all of the credentials.

The second thing I'll say is that Ketanji Brown Jackson also is a first, as you say, not only as a Black woman, she will be the first Black woman on the Supreme Court, but also the first person who was once a public defender representing people who can't afford a lawyer who are charged with crimes. As a former public defender myself, I can assure everyone that spending any amount of time in that job will give you just really unique insights into how to be a judge, how the legal system works, and again, how we all approach it as a human being and intersect in that moment in a courtroom.

The third thing I'll say is that just having read some of the news reports about how Judge Jackson is preparing to be Justice Jackson, is people are going to come for her. They already are. Of course, we've heard about the recent controversies over Ilya Shapiro, and others, Ted Cruz, calling into question whether she is qualified because she brings that richness of experience with her.

I think all of those things are probably no doubt going through Judge Jackson's mind. There are a lot of people who are very proud of her. I am one of them. One of the extra pressures, of course, being the first is you carry all the dreams and hopes of an entire community with you when you go forward and sit there in that hearing room.

Melissa Harris-Perry: In many ways, her resume, despite this extraordinary difference of being a public defender, which I think is a critical one to focus in on, but in many ways, much of the rest of her resume is consistent with that of basically every other justice. I appreciate, Cecillia, your point that you went to that slouchy state school, the UC Berkeley. [laughs] This seems like the very idea that a top 10 university, the state university, would somehow be not among the rarefied, it's not just Ivy Leagues, but a very, very few largely Yale and Harvard.

I'm wondering if you can imagine a court that someday is diverse in many different ways. Both diverse on questions of race, gender, sexual orientation, perhaps trans, cis identity. Perhaps also for first-gen students and others who maybe don't end up with the JD from the Yale or the Harvard but from a place like Bolt or maybe Howard University.

Cecillia Wang: Melissa, I think you've really hit on something that I've been thinking about a lot and that I know a lot of people are thinking about in the legal profession. Diversity is so much more than just race and gender. Sitting now in 2022 with Ketanji Brown Jackson hopefully about to become a Supreme Court Justice, it is hard to imagine making so much progress that we would see a Supreme Court with nine justices who represent all the richness of humanity, of American life on that Supreme Court.

I will say this, I never imagined, even during the presidency of Barack Obama, that you would see so many former public defenders and so many women of color being appointed to the federal bench, not just the Supreme Court, but the two lower levels of the federal judiciary. President Biden has really done an extraordinary job of focusing on making his judicial appointments looking at diversity. There is a long way to go, and the process is, frankly, an ugly political process. Who gets appointed to be a federal judge depends, of course, on connections more than anything else.

One way in which the federal judiciary, even with President Biden's appointments, has not become diverse is that the political process of confirmation has become so fraud, so dysfunctional that someone who has chosen in their career to be outspoken about issues of race, of justice, equality, that's still pretty much a disqualifying factor. We've seen that with a lot of appointments, not just for the judiciary, but for the executive branch as well.

If you're someone who lived your life as a lawyer fighting for civil rights, fighting for human rights, and you made no bones about it, and you have a long record of stating your opinions, that's something that the opposition is going to pick over. That's going to be, I think, one of the things that really needs some attention.

When Justice Marshall and Justice Brennan retired and when they passed on, I remember the Yale Law Journal had this beautiful photograph, this black and white photograph of Justice Marshall with his arm around Justice Brennan who was, of course, a head shorter than him. They're walking away from the photographer down the hallway right outside the Supreme Court courtroom, and the sunlight is coming in through these windows. The caption said, "We will not see their like again."

That's unfortunately true. Judge Jackson despite having a record as a public defender, as you said, she has all the right qualifications in other ways as much as the opposition will try to take her down for that. She's airtight. Like I said, no one has ever been more qualified to be a Supreme Court justice. I think the real test in the future is going to be whether the political process for appointment and confirmation. A federal judges can accommodate, can take into account the richness of experience of people who have picked up the tool of lawyering and the law as a way to seek social justice. That's one form of diversity that I think we have yet to see because of the political reality that we're dealing with.

Melissa Harris-Perry: Cecillia Wang is the Deputy Legal Director at the National ACLU. Cecillia also directs the Center for Democracy and she clerked for Supreme Court Justice Harry Blackmun, working in the chambers of Justice Stephen Breyer from 1996 to 1997. Cecillia, thank you for joining The Takeaway.

Cecillia Wang: Thank you so much. It's always a pleasure.

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