Washington Republicans are privately resigned to the likelihood that Supreme Court nominee Ketanji Brown Jackson will be confirmed by the Senate. But even if Republican senators don’t expect to block Jackson, the four-day televised hearing is still a proving ground for a number of potential GOP presidential candidates.
Several Republicans on the Senate Judiciary Committee with White House ambitions have the opportunity to make a splash this week as they question Jackson: Sens. Ted Cruz of Texas, Ben Sasse of Nebraska, Josh Hawley of Missouri and Tom Cotton of Arkansas.
Their model is the 2018 hearing for Brett Kavanaugh, when three future Democratic presidential candidates – Kamala Harris, Amy Klobuchar and Cory Booker – delivered their own high-profile performances. Unlike with the Kavanaugh nomination, Jackson has generated very little controversy. Her opponents have focused as much on their complaints about past judicial nomination fights as on Jackson’s record. But the opportunity to question Jackson is nonetheless a chance for White House hopefuls to demonstrate their political mettle.
The hearings so far have provided a look into how these four Republican senators who may run in 2024 are positioning themselves ahead of a primary. Their opponents could include not only each other but former President Donald Trump, the Republican who has singularly shaped the party for the past half decade.
In their statements and questions to Jackson, each of these Republicans have demonstrated their own interpretations about how to address issues such as the courts, the role of government and race in the current iteration of the GOP.
As a reliable avatar for grassroots conservative sentiment, Cruz has used his Judiciary Committee perch to lean into familiar culture war issues and disparage liberals, playing a role Republican primary voters have come to expect from the Texan.
Cruz spent his opening statement on Monday criticizing Democrats and the news media. And on Tuesday, his line of questioning to Jackson began with issues surrounding race and education – culture war touchstones that had little to do with her judicial philosophy. Indeed, Jackson responded to several questions from Cruz about her views of both The New York Times’ 1619 Project and critical race theory by saying the issues do not come up in her work on the federal bench.
But Cruz made sure to let viewers know his own views on those subjects: He noted he finds the 1619 Project “deeply inaccurate and misleading” and disparaged certain books found in schools that he says teach children incorrect ideas about racism.
How public education should address America’s racial history has emerged as an hot-button topic in recent election cycles, including in last year’s Virginia gubernatorial race. Republicans see their opposition to more progressive readings of American history as a winning issue. And Cruz’s attempt to draw out Jackson into a debate about this topic reflects its power with the conservative grassroots that make up his base.
As much as Cruz is a quintessential firebrand, Sasse presented himself as a sober conservative, critical of both parties and the three branches of government for failing to live up to their responsibilities. A frequent critic of Trump before, during and after his presidency, Sasse has given voice to a conservative critique of the lack of civic virtue.
“Many years of corroding our constitutional order have contributed to the polarization and the viciousness that are poisoning our politics more broadly,” Sasse said in his opening remarks Monday. “We all know that our civic health and our civic life is not healthy.”
More content to let the conversation with Jackson carry on at length than to deliver flashy soundbites, Sasse has tended toward focusing his remarks on academic questions of Jackson’s judicial philosophy. That has allowed the Nebraska Republican to make known his views on the proper role of the judiciary.
“Throughout this process, we should all remember that a Supreme Court justice is not a lawmaker by another name. A Supreme Court justice performs a crucial but limited function in our political system, namely to interpret and fairly apply the text of the law as written and as understood at the time it was adopted,” he said on Monday.
Unlike other Republicans on the panel, Sasse failed to get combative with Jackson – in-character with his kinder, gentler approach to drawing distinctions with liberals. It remains to be seen whether there is a market for that in a Republican primary electorate that rewarded Trump for doing the opposite in 2016.
Among the GOP members of the committee, Hawley did the most beforehand to telegraph his likely line of inquiry – distinguishing himself early as a senator worth watching and setting the tone for other Republicans on the committee.
In the days before Jackson’s hearing began, Hawley expressed concerns about her writings, remarks and decisions around the sensitive issue of child pornography crimes. On Twitter, Hawley accused Jackson of having “a pattern of letting child porn offenders off the hook for their appalling crimes.”
Hawley has iterated seven cases Jackson had heard as a trial judge in which she delivered lighter sentences than recommended by prosecutors for people convicted of consuming child pornography. But Jackson appears to be in the mainstream of federal judges, where the norm has been to hand down lighter sentences than for those who produce child pornography.
Even conservative legal commentators who oppose Jackson’s confirmation have registered their disagreement with this line of inquiry. Andrew McCarthy of the conservative magazine National Review wrote that Hawley’s charges were “meritless to the point of demagoguery.”
But Hawley, who has cultivated a reputation as a hardline populist conservative with a particular emphasis on pro-family policies, remained committed to pressing the point. The Missouri Republican engaged in a tense back-and-forth with Jackson on Tuesday over her sentencing in a case of an 18-year-old convicted of possessing child pornography, which allowed him to argue Jackson’s views toward sex offenders is too lenient.
“I am questioning your discretion and your judgment,” he said.
In signaling early on he would pursue this line of questioning, Hawley emerged as something of a leader among the Republican committee members. Several, including Cruz (who precedes Hawley in seniority on the committee and was able to ask his questions first), pressed Jackson on her sentencing record in child pornography cases as well.
There’s little surprise that Cotton embraced his reputation as a law-and-order Republican. Even in his opening remarks on Monday, he laid into his main target: the Biden administration, which he said is “waging a war on the rule of law, the separation of powers and the Constitution.”
Cotton tied his critique of the current president to the need for an impartial judiciary. That, Cotton said, requires Jackson to outline her judicial philosophy beyond broad statements about her commitment to integrity, fairness, and established precedents.
“It’s not enough to say only that one would look at the facts and arguments in the case and fairly apply the law. That wouldn’t tell us anything about how one plans to do the job, how one interprets the law, how one understands our Constitution,” Cotton said.
The Arkansas Republican then took the opportunity to outline his own view of what sort of qualities he would seek in a Supreme Court nominee, a speech that would not be out of place in an early primary state.
“I’m looking for a justice that would uphold the Constitution, not use it to invent new so-called rights. I’m looking for a justice who understands the Constitution means what it says and does not mean what it doesn’t say,” Cotton said.
And in his Tuesday questions for Jackson, Cotton took issue with her approach to sentencing convicted felons, as well as her views on resentencing. While Jackson defended her past decisions as consistent with federal statutes, Cotton was able to register his broad opposition to laws and proposals that reduce sentences for such crimes – including the First Step Act, signed into law by Trump.