The April 4 Senate Judiciary Committee hearing advanced seven nominees to the floor for confirmation, but the real news, of course, was Joe Biden’s pick to take Stephen Breyer’s place on the Supreme Court. Judge Ketanji Brown Jackson cleared the committee by the seat of her pants in a deadlocked 11-11 vote split along party lines – precisely as everyone expected she would. There soon followed a full Senate “discharge motion” to bring the vote out of committee, which passed 53 to 47. Republican Senators Mitt Romney (UT), Lisa Murkowski (AK), and Susan Collins (ME) voted alongside Democrats to further the nomination. Now the final hurdle: a full vote on the floor of the Senate. While most Republicans will almost certainly vote against her, she’s still practically guaranteed to be confirmed thanks to the three who have already offered their support.
But the issues raised by the Republicans on the Judiciary Committee may have a longer shelf life than would normally be the case. The various arguments that the GOP put forward could well form the basis of a vocal opposition leading into the 2022 congressional elections.
The Same Old Song and Dance
Of the 22 committee members, 20 spoke at length about their support or lack thereof for Judge Jackson. Republicans painted the picture of a radical progressive judge – an activist who would craft policy from the bench by ruling not in line with the Constitution, but her own idea of what’s fair regardless of the law. Democrats spent their time extoling Judge Jackson’s extensive experience, gushing over her family and the fact that she’s the first black woman nominated to SCOTUS, and refuting the various individual points brought up by Republicans.
Each GOP senator on the committee stuck mostly to the same points. Ketanji Brown Jackson seems like a nice and talented person – but the Supreme Court is different from district or circuit courts, and both her judicial record and her statements during the hearings fell short of satisfying. They all expressed concern over her evasive answers and, sometimes, simple refusal to reply. They believe she would set aside, as Sen. Lindsey Graham (R-SC) put it, the plain meaning of the letter of the law to get to the result she wants, pointing to previous rulings in which she seemed to do precisely that. Democrats countered that she answered the relevant questions and that there’s no reason to believe she’s lying or being evasive when she says she has no judicial philosophy. They argue also that the Senate received the relevant case records.
Jackson’s history of allegedly giving out lighter-than-recommended sentences for criminals was a cause for concern. Republicans argued that, while they didn’t have access to all her records, those they did see showed her to be 47% below the national average when it comes to sentencing in child pornography cases. The point was made numerous times that more than one of the criminals she sentenced went on to re-offend in some way before they would have been free to do so had they received the recommended time – effectively implying that she shares some blame in those later occurrences.
Democrats claimed she was well within the mainstream in her sentencing, and that most judges fall short of the guidelines. If they could have looked at the full records – including presentence investigation reports, they’d see the full story behind each case and understand why she sentenced as she did. But, of course, those documents are sensitive and private between the courts and the victims of the crimes, so Congress can’t have access to them. And if they can’t be read, they can’t really be considered in the final decision.
Goose or Gander?
Whatever the specific complaint – her opinion on federal sentencing guidelines, rulings in specific cases, or view of the Constitution and a judge’s role in the government – it all boils down to a difference in ideology. From coldest to warmest, each Republican said that Judge Jackson seemed like a nice person, but they just couldn’t support the candidate because her idea of what it means to be a Supreme Court justice differs fundamentally from theirs.
The argument made in countering this was that her judicial experience should be more important than her ideological stance. But as several GOP senators pointed out, some of the Democrats on that very committee had rejected George W. Bush’s appeals court nominee, Janice Rogers Brown, in 2003 based solely on her conservative ideology. Several committee members were named, along with Chuck Schumer of New York, who is now the Senate majority leader, and President Joe Biden, who was still in the Senate at the time. Though a deal was reached to end the filibuster, many – including Biden – continued to oppose her. The final vote was 56-43, and she was confirmed to the US Court of Appeals for the District of Columbia Circuit.
Janice Rogers Brown was never nominated to the Supreme Court, but Republicans argued that had the Democrats supported her then, she might well have been the first black woman on SCOTUS. How? It’s a trajectory argument, Liberty Nation Legal Affairs Editor Scott D. Cosenza, Esq. pointed out. “If she didn’t suffer that early stumbling block, then she gets on the court – that’s basically what they’re saying,” Cosenza explained. “The subtext is the GOP would have nominated the first black lady to the Supreme court, except the Democrats didn’t let them use the process to make that happen.”
From a more political perspective, it’s also an attack on the virtue-signaling – dare we say, hypocrisy – of Biden making a show of nominating a black woman for the Supreme Court, and of many Senate Democrats in flocking to support her, after crippling another black woman’s path to that very court not ten years earlier. It’s like saying: “You think you’re heroes for doing this now, but you’re the reason there isn’t already a black woman on the High Court.”
What’s It All for, Anyway?
With an 11-11 tie, Judge Jackson gets her full floor vote – which is expected to happen before the week ends at close of business Friday. With 50 senators either in or caucusing with the Democratic Party on board to make it happen, the three Republicans – Susan Collins, Mitt Romney, and Lisa Murkowski – who already said they’ll vote to confirm, Judge Jackson’s success is virtually a foregone conclusion. To be rejected, at least three senators would have to change their minds or simply not show up.
But there’s another benefit to visibly and vocally opposing this nomination. November is right around the corner. Regardless of the confirmation process’ outcome, if Republicans can convince voters that Ketanji Brown Jackson will overstep her limitations as a justice, overturn school choice, set aside the law for her own goals, and put America’s children in danger by causing predators to face less jail time nationwide, they’ll fire up the masses – well, those who aren’t progressives, in any case – to vote red in the midterms. If they’re right about her being farther left than the man she hopes to replace, that might be enough to secure a few more wins for their party.
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