Justice System in US Affected by Implicit Bias, Barrett Agrees

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Supreme Court nominee Amy Coney Barrett acknowledged Tuesday that the U.S. justice system is subject to “implicit bias,” a concept that has been strongly challenged by the White House.

Under questioning from Sen. Cory Booker (D-NJ) on the second day of her confirmation hearing Barrett said, “it would be hard to imagine a criminal justice system as big as ours without having an implicit bias in it,” reports NPR.

Booker challenged Barrett on the topic of criminal justice reform after she had earlier made a statement that racial equality was in the hands of lawmakers, not judges.

Booker referenced a 2019 Illinois case of racial discrimination within the workplace that was adjudicated by Barrett, as a federal appeals judge. A man fired from his job had sued for discrimination on the basis that he had been called the N-word and suffered from a “hostile work environment” created by his supervisor.

In her opinion, NPR reports, “Barrett wrote that the N-word is an ‘egregious racial epithet,’ but she argued that the employee couldn’t win by simply proving the N-word was said.”

In his questioning, Booker noted that even Justice Brett Kavanaugh, a conservative judge who appointed to High Court 2018, had conceded when he served on the U.S. Court of Appeals that the use of the N-word alone signified discrimination.

Barrett responded that the defendant failed to show the use of the N-word as evidence of a hostile work environment, instead referencing other expletives, which is what resulted in the decision against him.

“The panel very carefully wrote the opinion to make clear that it was possible for one use of the N-word to be enough to establish a hostile work environment claim if it were pled that way,” Barrett said.

While much of the confirmation hearings are focused on hot-button issues that the nation is currently facing such as the overturning of Roe v. Wade, the Affordable Care Act and stare decisis, the importance of criminal justice reform after a summer of protests was not lost on the senators questioning Barrett.

In a number of campaign appearances, both President Donald Trump and Vice President Mike Pence have dismissed criticism by protesters—as well as published criminological research— that American policing has long been subject to implicit bias, or that there is “systemic racism” in the system.

In his debate with Democratic nominee Joe Biden this month, Trump mocked the idea of “sensitivity training” developed by many police departments to help officers deal with underlying racial issues.

Sen. Dick Durbin (D-IL) asked Barrett how the murder of George Floyd impacted her.

She responded by saying that it was “very personal” for her family, referencing her two adopted children, according to a CNN report.

“It is an entirely uncontroversial and obvious statement given that we just talked about the George Floyd video that racism exists in this country,” Barrett said after being pressed by Durbin.

“As for putting my finger on the nature of the problem, whether as you say it’s outright or systemic racism or how to tackle the issue… giving broader statements or making broader diagnoses about the problem of racism is beyond what I’m capable of doing as a judge,” Barrett said.

Although Barrett has continued to claim during her hearing that she has “no mission and no agenda,” some have worried that increasing the conservative majority on the Court will push it towards more conservative rulings on justice issues such as gun control.

Read more updates on the confirmation hearing:

Barrett: I Own a Gun but it Won’t Influence my Legal Opinions

Barrett Called a ‘Judicial Torpedo’ Aimed at Obamacare 

This summary was prepared by TCR news intern Emily Riley

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