Senate Judiciary Clash Tests Respect for Black Women Politicians

Laphonza Butler said she’s used to “being the only Black woman” in the room, a position she found herself in once again on the dais while leading a Senate Judiciary Committee hearing.

In a scene little noticed at the time outside the committee room, two Republican senators—Ted Cruz of Texas and John Kennedy of Louisiana—shouted over the interim California Democrat, the third Black woman to serve in the Senate, as she denied them additional time to challenge testimony by a trial court nominee.

The anger directed toward Butler at the May hearing was discussed widely among Democratic members and their staff on a panel where decorum often gives way to discord when it comes to judicial nominations.

What happened that day remains ambiguous. Butler and her Democratic colleagues disagree on whether it was the usual partisan ire, Republicans getting particularly incensed about being cut off by a junior senator who was only serving out the remaining 15 months of the late Dianne Feinstein’s term, or whether her identity as a Black gay woman had anything to do with it.

Asked a day later if her identity played a role, Butler said “there are many in lots of different capacities, whether Senate colleagues or staff or others, who will try and will fail to intimidate the only Black woman in the United States Senate, just as my colleagues experienced yesterday.”

How Black women in positions of power are treated has gotten increased attention in the months since due to the unexpected ascendance of Kamala Harris, Butler’s longtime friend and predecessor, as the Democratic presidential nominee. Two other Black women are running for Senate seats in Delaware and Maryland.

Heated Exchange

Butler stepped into the Judiciary Committee chair for the first time on May 22, midway through a confirmation hearing for nominees from three states.

“Chair Durbin has handed me the gavel,” she said, sounding semi-surprised after he left the hearing.

Republicans spent much of the session scrutinizing a recommendation by Sarah Netburn, a Southern District of New York magistrate judge, to allow a transgender inmate’s transfer to a women’s prison.

Cruz and Kennedy erupted in protest after Butler gave Netburn an opportunity to respond to their questions but wouldn’t allow them to follow up. Butler said they’d had more than enough time to question Netburn.

For more than a minute, Cruz and Kennedy yelled over Butler and wouldn’t acknowledge her requests to yield the floor. Staffers scrambled to help her sort the parliamentary steps to address the situation. Other Democrats on the dais appeared stunned. She banged the gavel to no avail.

“You are abusing your status as chair,” said Kennedy, who’s served on the committee since 2017. He later attempted to “appeal” Butler’s decision.

Kennedy was more conciliatory during a June 20 hearing when the panel’s second-most junior member, Peter Welch (D-Vt.), initially denied Kennedy’s request to give senators more time to question two appellate nominees. The panel’s top Republican, Lindsey Graham of South Carolina, was present at the time.

“Pretty please?” Kennedy said. “Sugar on top?” he later added when Welch acquiesced to six instead of five minutes for each senator.

Partisan Fissures

Republicans often spar with Judiciary Chair Dick Durbin (D-Ill.) during hearings.

During a January committee meeting, Cruz said Durbin was “impugning” his character and “pulling the race card” when the chairman accused Republicans of targeting Adeel Mangi’s Muslim identity. Mangi would be the first Muslim appellate judge if confirmed to the US Court of Appeals for the Third Circuit.

A day after the May 22 exchange with Kennedy and Cruz, Butler told Bloomberg Law in a hallway interview that the Republicans haven’t “gotten as excited” with Durbin “as they did with me in the chair.”

Butler was more measured when asked about the incident and how her identity might have factored into their behavior in an interview at her Capitol Hill office a few weeks later. “That was a question for them, honestly,” she said.

“I can only control how I show up,” she later added.

In a Sept. 12 hallway interview, Cruz said Butler “was trying to silence debate and prevent the actual facts about the nominee from coming out. And I’ve had the exact same disagreements with Dick Durbin for years when he’s abused his power. In this instance, she was sitting in his seat, and just like Dick Durbin, was abusing the power of the chair.”

Kennedy said in a Sept. 9 interview that he’s “very fond of the senator. I like her and I respect her a lot,” and repeated his critique that it was unfair for Butler to “protect” a judicial nominee from substantive questioning.

He rebuffed questions about how his treatment of Butler compared to his past disagreements with Durbin. “I’m not interested in other instances,” he said.

Choosing Battles

Carol Moseley Braun, the chamber’s first Black female senator, couldn’t recall ever experiencing such treatment while serving in the Senate during the 1990s. But she said she isn’t surprised that a Black woman would be, even today.

“It was in the nature of misogynoir,” the former Illinois Democrat said, “that she would be treated this way,” invoking a term for the intersection of racism and misogyny that Black women face.

Butler’s colleagues on the committee are hesitant to accuse the Republicans of prejudice or implicit—and therefore unintentional—bias following the event.

Durbin called out what he has named “a particular vehemence on the Republican side when it comes to women of color” judicial nominees. But he said he wouldn’t go as far to say Butler’s identity factored into Kennedy and Cruz’s actions. “That would be a presumption, and I don’t want to engage in it,” he said. The next time Butler chaired a confirmation hearing July 10, Durbin presided beside her.

“It’s gonna be a team effort,” she said at the time.

To Welch, that May hearing was “just another day in the Judiciary Committee,” where proceedings often get heated. Cory Booker (D-N.J.), the panel’s other Black member, said speculating about the undertones of such an exchange is “a tough rabbit hole to go down to when you start talking about those things.”

But Mazie Hirono (D-Hawaii), the only other woman of color on the panel who witnessed the exchange firsthand, said “Not lost on anyone was the fact that both of their targets—the witness and the chair—were women.”

The unequal treatment that Black women in high positions face isn’t as overt as in the past. Underlying motives of bias can be subject to different interpretations, said Andra Gillespie, a political scientist at Emory University who researches African American political leadership.

In the Senate, partisan politics is the most obvious motive for any disagreements, including those that have become the norm in the Judiciary committee.

Black women such as Butler and their allies often decide they “don’t want to waste political capital on trying to address an issue that other people are not going to agree with you as being racist,” Gillespie said.

Even when Black women and their allies recognize the actions of others as racist or sexist, it can be disadvantageous to bring light to it. In an institution like the Senate, historically considered the more genial chamber of Congress, such accusations can come with their own fallout.

Sometimes “you just don’t have time to deal with it. It’s not worth the effort to deal with it, and so you learn to let it fall off of your back,” Gillespie said.

Harris’ identity has been a central focus among her critics during the presidential race. Republican members of Congress have said that Harris, the highest ranking woman of color in public office as vice president, is a ‘DEI hire,’ suggesting that President Joe Biden chose her solely because she is a Black and South Asian American woman.

Butler, a close adviser to Harris during her 2020 presidential bid, said in an interview “we will give it but only so much attention” when asked about such attacks on Harris ahead of the November election.

Next Generation

The Senate could have two Black female members come January, as Democrats Angela Alsobrooks of Maryland and Rep. Lisa Rochester of Delaware run to replace retiring members.

Butler isn’t running to keep her seat and the longtime labor leader has felt a sense of urgency to accomplish all that she can in the narrow window she’s had.

It’s a zero-sum game in her eyes: dwell on the “disruptive and distracting and disrespectful” actions of her colleagues or focus on her congressional duties and finding ways to reach across the aisle.

Georgetown University’s Nadia Brown, who researches Black women’s political representation, said that Butler, Moseley Braun, and Harris have not only built a reservoir of wisdom for navigating politics at the highest levels, but are well positioned to share their knowledge with other Black women climbing the rungs of power.

“While they’re in the Senate, they’re changing the customs and the rules and the norms to make it more accessible to others and make it less tolerable to some of the institutional practices that have othered them or silenced them or marginalized them,” Brown said.

When asked if she had any advice for Alsobrooks and Rochester, Butler was blunt: “Fight for your focus.”

“There’s going to be everything coming at those women,” she said. “There’s going to be lots of opportunities for them to potentially be distracted from what is their focus.”