Democrats and Republicans alike embarrassed themselves at Tuesday's Supreme Court confirmation hearing of Ketanji Brown Jackson. Democrats generally refused to engage inquisitively with the nominee and reverted to cheerleading. Not to be outdone, the worst exchanges from Republican senators ranged from the ignorant to the petulant and even outright demagoguery. Senator Chuck Grassley (R-IA) asked the nominee about televising Supreme Court hearings; he should have tried to shut down Senate cameras instead.
Not Exactly Enlightening
Lindsey Graham (R-SC) was the second Republican to question Judge Jackson and the first to grab the wheel and steer for the ditch. "What faith are you, by the way?" was his first question, followed by "Could you judge a Catholic?" These queries seem designed solely to shame Senator Dianne Feinstein (D-CA), who slandered Amy Coney Barrett's Catholicism during her confirmation battle. Graham didn't merely criticize Feinstein, however; he actually put those questions to the nominee, and she responded. He went on to ask Jackson how faithful she was on a scale of one to ten and if she attended church regularly. The judge politely declined to answer that last one, after which Graham launched into a series of rhetorical questions asking how she would feel if she were subject to the same treatment Judge Barrett received.
During opening statements on Monday, Graham said that the hearings would be challenging for the nominee, informative for the public, and respectful by the Senate. They went 0-3. Graham concluded his Tuesday questioning by screaming at Committee Chair Dick Durbin (D-IL) over Guantanamo Bay detainees and how he hoped they died in custody. Previously, Graham had excoriated Judge Jackson for advocating as a lawyer that the detainees should be subject to some due process. That was a bridge too far for Graham, who finally stormed off while Durbin spoke.
Two Wrongs
The infamous Brett Kavanaugh nomination hearings turned into an ad hoc trial on politically managed allegations of sexual assault. The Democrats' showcase of Christine Blasey Ford's claims was a disgrace in form and function. So why emulate them? Led by Senator Josh Hawley (R-MO), a group including Senators Ted Cruz (R-TX), Tom Cotton (R-AR), and Marsha Blackburn (R-TN) has signed on to promote the notion that Judge Jackson is a friend to pedophiles, giving them sweetheart sentences.
Hawley challenged Judge Brown as to why she didn't sentence some defendants convicted of possessing child pornography to longer terms. Judge Brown claims she made her sentences consistent with recommendations from the independent court probation office. Andrew McCarthy of the National Review said Hawley's accusations were "a smear." He also wrote, "[t]he allegation appears meritless to the point of demagoguery."
No Senatorial Value
The level of exchange did not equal the "world's oldest deliberative body." Senator Cotton pestered the nominee with questions about whether she thought there were too many or too few police on the streets. Did she believe murderers and rapists served enough time? Policy question after policy question that, as the senator well knows, any nominee must decline to answer.
Senator Cruz focused on Judge Jackson's position as a member of the board of trustees of the Georgetown Day School. Per the school's website, the judge "serves on the External Affairs Committee and the Facilities Master Planning Committee." Cruz said a book by author Ibram X. Kendi, called Antiracist Baby, was recommended or required by the school. Cruz had a large panel blow-up of a page stating, "babies are taught to be racist or antiracist—there's no neutrality."
Committee Democrats also failed to add value to the proceedings but did so less conspicuously. They, by and large, distinguished themselves by not asking any questions that might illuminate, educate, or clarify. How about discussing qualified immunity and whether the nominee supports this judge-made law? What about access to court documents and freeing up the federal PACER system that keeps court records from the public rather than giving them wider distribution? Crickets. There are topics a nominee will discuss, but only if directly asked about them.
Judge Jackson acquitted herself well. Except for some audible sighs during Senator Cotton's questioning, she kept her cool. If she – and the proceedings – continue in this manner, she will likely be confirmed. Will day three of the nomination hearings yield a more substantive discussion about her future work? Hope springs eternal. The Senate Judiciary Committee resumes its work on Wednesday at 9 a.m.
~ Read more from Scott D. Cosenza.
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