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The confirmation hearings of Judge Ketanji Brown Jackson, until they got started Monday, felt almost anti-climactic.
Even before Jackson’s nomination, the future of the court seemed set:
But the hospitalization of Supreme Court Justice Clarence Thomas, who has an infection and is expected to recover, is a reminder that even strong court majorities are fragile.
Get to know Jackson
Jackson could be a part of every American’s life, to some extent, for years to come. And with her, the country will know there is a wider breadth of the American experience on the bench.
“We can be confident that the court, its role and its decisions will be more understandable to the American public,” Senate Judiciary Chairman Dick Durbin said.
Jackson told lawmakers in an opening statement (the Q&A portion starts Tuesday) she will be guided by transparency and a commitment to justice.
“I have dedicated my career to ensuring that the words engraved on the front of the Supreme Court building – ‘Equal Justice Under Law’ – are a reality and not just an ideal,” Jackson said.
The first Black woman nominated to the court
The importance of her status as the first Black woman nominated to the court is only made more important by the fact that there aren’t currently any Black women in the Senate considering her appointment.
Democrats leaned into the historical nature of her nomination, praising Jackson for success dating back to her high school speech and debate team – a national champion in oratory – her high marks at Harvard University and her distinguished career, which has given her more experience in a courtroom than most other justices.
Republicans claim to strive for more respectful hearings
Republicans sought to distinguish their behavior from Democrats through strategies that have political undertones:
- No last-minute questions about Jackson’s personal behavior, as they say there were with Justice Brett Kavanaugh.
- No questions about her religious affiliations, as there were with Justice Amy Coney Barrett.
- There will obviously be no filibuster of Jackson since Republicans nuked the filibuster for Supreme Court justices to confirm Justice Neil Gorsuch.
That does not mean there won’t be opposition to Jackson and attacks on her record.
The questions they’ll raise
There is still grousing by Republicans that President Joe Biden promised to pick a Black woman.
Sen. Lindsey Graham of South Carolina was frustrated that Democrats have opposed Black and Latino conservatives – specifically, he mentioned Miguel Estrada, who withdrew his nomination for a lower court in 2003, and Janice Rogers Brown, who was only confirmed to a lower court after a long delay.
“So if you’re a Hispanic or African American conservative, it’s about your philosophy. Now, it’s going to be about the historic nature of the pick,” Graham said.
Graham and Sen. Chuck Grassley of Iowa both said they will pursue questions about how and why Jackson was picked and whether liberal groups had too much say. Graham was frustrated that a Black woman from South Carolina, Michelle Childs, was opposed by liberal groups. Grassley used the term “dark money” to suggest a nefarious influence campaign.
(Sidebar: The amount of money and lobbying to influence these picks – both Republican and Democratic – is remarkable, for sure.)
No specific judicial philosophy
Brown will take questions on any number of judicial issues and hot button topics, ranging from the law of armed conflict to the current GOP buzzword “parental rights,” and whether transgender women should be allowed to compete on women’s sports teams.
She’ll try to be as non-controversial as possible when answering them – she’s told senators she doesn’t have a specific judicial philosophy.
Jackson promised to be independent and transparent, but some Republicans suggested she’ll need to reveal more.
“I can only wonder: What’s your hidden agenda?” said Sen. Marsha Blackburn, the Tennessee Republican, in an opening statement that sought to raise doubts about Jackson’s record as a judge.
“Is it to let violent criminals, cop killers and child predators back to the streets? Is it to restrict parental rights and expand government’s reach into our schools and our private family decisions? Is it to support the radical left’s attempt to pack the Supreme Court?” Blackburn asked.
Expect a child pornography diversion
While they are promising a respectful inquiry, Republicans will not keep things entirely out of the gutter.
Both Blackburn and Sen. Josh Hawley of Missouri have questioned Jackson’s role in child pornography cases, when she handed down sentences shorter than those suggested by either the US Sentencing Commission or prosecutors.
That sounds very bad – you hear how Republicans will use it in Blackburn’s quote above – but multiple fact checks, including this one by CNN, have noted the record is a bit more complicated.
One former Republican prosecutor said there is ample reason to oppose Jackson’s nomination, but to allege she is soft on child predators is not one of them.
“The allegation appears meritless to the point of demagoguery,” writes Andrew C. McCarthy for the National Review.
What does Jackson need?
In the 50-50 Senate, Vice President Kamala Harris could break a tie and place Jackson on the bench. No Democrats have said they oppose her, and it would take a serious fumble at these hearings to endanger her nomination. It is also possible a number of Republicans will support her, but likely not enough to give her the 87 votes outgoing Justice Stephen Breyer received.