During the confirmation hearings for Ketanji Brown Jackson to become the next US Supreme Court justice, many Republican members of the Senate Judiciary Committee wasted no time embracing the kind of bad-faith scrutiny often reserved for women and Black nominees – beneficiaries of affirmative action, in one GOP senator’s parlance.
Some Republicans, lacking a coherent strategy, pressed Jackson for her views on The 1619 Project and the children’s book “Antiracist Baby” (because “critical race theory”), though neither has anything to do with the job she’s being considered for. And others tried with great effort to cast the nominee as weak on crime by distorting her past work defending Guantanamo Bay detainees and her sentencing in child pornography cases.
This wafer-thin opposition was revealing.
To use an observation from Sen. Richard Blumenthal, a Connecticut Democrat, the attacks on Tuesday and Wednesday were nothing more than “straw men, worn talking points and imagined grievances” that demonstrated that Republicans didn’t have any real criticism of Jackson, whom the American Bar Association rated “well qualified” to serve on the court. All GOP senators had were tired complaints designed to animate their base.
The 1619 Project and CRT
Some Republicans this week seemed determined to deflect attention from Jackson’s record.
Take Sen. Ted Cruz of Texas. He spent several minutes of his questioning time on Tuesday not talking about Jackson but instead impugning Nikole Hannah-Jones, a New York Times Magazine writer and the creator of The 1619 Project, which has become a lightning rod for the anger of the political right. Then, he leaped to CRT and rifled through children’s books that he said promote the law school framework.
“Do you agree with this book (‘Antiracist Baby’) that is being taught to kids that babies are racist?” Cruz asked.
Jackson refused to spar over racist babies and insisted on discussing legal matters.
“Senator, I have not reviewed any of those books, any of those ideas,” she said. “They don’t come up in my work as a judge, which I’m respectfully here to address.”
Later that day, Sen. Marsha Blackburn of Tennessee revisited CRT, saying that Jackson ought to give parents the right to prohibit the concept from being taught in public school classrooms.
“It is important to them to have a Supreme Court that is going to protect parental rights to teach these children as parents see fit to have their children taught,” Blackburn said.
In some ways, avoiding conversations about anything relevant to Jackson or her record seemed to be the point on Tuesday and Wednesday.
“In lieu of taking Jackson’s sterling record seriously, opponents have opted for deflection,” Slate’s Dahlia Lithwick recently wrote. “They don’t like court expansion. They don’t like the Sentencing Commission. They don’t like lawyers who defended detainees at Guantanamo Bay. But these aren’t actually complaints about Jackson or her qualifications. They’re rehashed boilerplate complaints about all Democrats.”
For weeks, Republicans have seemed uninterested in engaging with Jackson’s record. Presumably, that’s because they know that their attacks hold no merit and that there’s little they can do to thwart her from being confirmed. So, they used the hearings to prepare for something much less settled: the midterm election cycle.
‘Soft on crime’
When they weren’t preoccupied with Democrats’ treatment of Brett Kavanaugh – who four years ago was accused of sexual assault before he was confirmed to a lifetime appointment on the country’s highest court – Republicans this week were obsessed with trying to portray Jackson as “soft on crime.”
For instance, Sen. Lindsey Graham of South Carolina and Sen. John Cornyn of Texas expressed concerns over the nominee’s advocacy for Guantanamo Bay detainees while she served as a federal public defender and worked at a private law firm. Graham went so far as to claim that Jackson’s advocacy jeopardized national security.
“I’m suggesting the system has failed miserably and advocates to change the system like she was advocating would destroy our ability to protect our country,” Graham said on Tuesday, before theatrically leaving the room.
Yet what such criticism downplayed was the fact that Jackson was merely following the Constitution that Republicans enjoy showering with pious praise.
“She was meeting a minimal constitutional requirement: providing defense to those who are in the criminal justice system and who are unable to afford defense,” Melissa Murray, a professor at New York University School of Law, told CNN. “To me, that suggests fidelity to the rule of law, not necessarily soft on crime.”
Alicia Bannon, the director of the judiciary program at the Brennan Center for Justice, underscored the importance of Jackson’s unique professional background.
“Jackson would be the first justice, ever, to have experience as a public defender,” Bannon told CNN. “She’d be the first justice since Thurgood Marshall, who left the court more than 30 years ago, to have substantial experience representing poor criminal defendants. And that’s a critical perspective that’s long been absent from the judiciary overall and especially from the US Supreme Court.”
Notably, Marshall faced similarly dishonest scrutiny during his confirmation hearings in 1967, when a group of Southern senators tried to attach the civil rights leader to the specter of crime during a season of racial unrest.
“I know there is a crisis in this country, a crime crisis,” Sen. John McClellan of Arkansas said at the time. “I know the philosophy of the Supreme Court one way or the other on these vital issues is going to be of untold consequences, and has already been in my judgment of serious consequences to the crime situation.”
Republicans, including Cruz and Sen. Josh Hawley of Missouri, also sought to misrepresent Jackson’s record by charging that, as a jurist, she was too lenient in child pornography cases.
Jackson refuted the already-debunked accusation that she under-sentenced in child pornography cases – a thorough CNN review found that she largely hewed to the common judicial sentencing practices in these kinds of cases – and meticulously laid out her approach to an issue that she described as a “sickening and egregious crime.”
“The judge is looking at all of these different factors and making a determination in every case, based on a number of different considerations,” Jackson said on Tuesday. “And in every case, I did my duty to hold the defendants accountable in light of the evidence and the information that was presented to me.”
Cruz and Hawley’s actions were particularly disturbing for their potential to energize the conservative fringes.
As Vox’s Ian Millhiser put the situation earlier this week, “Republicans are tapping into the ugliest ideas that exist in American society. They’re throwing around allegations that rely on distorted versions of someone’s actions. And they’re doing so in the hopes of derailing the nomination of a judge with an entirely mainstream record.”