WASHINGTON — Senate Republicans are coming out in droves against Judge Ketanji Brown Jackson for the Supreme Court, citing a variety of reasons for opposing President Joe Biden's pick ahead of a major vote on her nomination next week.
Many of the senators concede that Jackson, a federal appeals judge in Washington, D.C., is qualified for the job, but they point to other reasons to justify their resistance — mainly her judicial philosophy, her refusal to denounce expansion of the Supreme Court, her record in child exploitation cases and Democrats' past treatment of conservative judicial nominees.
Jackson remains in good shape to be confirmed because of the 50-vote requirement and strong Democratic support. So far, just one Republican has publicly backed her: centrist Sen. Susan Collins of Maine. It's not clear how many more GOP votes she'll get.
Here's what the bulk of Republicans say is holding them back.
Many Republicans say Jackson's "judicial philosophy" makes her candidacy unacceptable. That's largely because she refused to limit herself to "originalism" and "textualism" — two connected and narrow approaches to interpreting the Constitution that are popular among conservative lawyers and activists.
“I believe that it is appropriate to look at the original intent, original public meaning of the words," Jackson said at her confirmation hearings.
Sen. Ben Sasse, R-Neb., said Jackson "refused to claim originalism as her judicial philosophy," saying she appears to believe originalism is "just one of the tools judges use — not a genuine constraint on judicial power."
Sen. Lindsey Graham, R-S.C., who voted to confirm Jackson to the U.S. Circuit Court of Appeals last year, said Thursday she has a "lack of a steady judicial philosophy" and "will not be deterred by the plain meaning of the law when it comes to liberal causes."
The framework splits Republicans from Democrats, who believe judges should have room to read and apply constitutional text in a way that’s relevant for modern realities that the original writers couldn't have envisioned.
When Jackson was questioned about how to apply First Amendment protections in a world with smartphones, she said it's "a process of understanding what the core foundational principles are in the Constitution, as captured by the text, as originally intended, and then applying those principles to modern day."
Jackson said there's no simple label that captures her philosophy.
She won't denounce 'court-packing'
Numerous Republicans fault Jackson for declining to speak out against "court packing" — an effort by progressives to add seats to the Supreme Court to change its ideological balance, which has no viable chance of succeeding in Congress.
“Judge Jackson has refused to follow the Ginsburg-Breyer model and denounce court-packing,” Minority Leader Mitch McConnell, R-Ky., said when he announced his intention to vote against Jackson, referring to the late Justice Ruth Bader Ginsburg and Justice Stephen Breyer. “She testified she’d be ‘thrilled to be one of however many.’”
Jackson said that under the Constitution, the size of the Supreme Court is "a policy question for Congress" and that she is committed to "staying in my lane" as a judge. "I’m just not willing to speak to issues that are properly in the province of this body."
Responding to a question from Sen. John Kennedy, R-La., Jackson said she didn’t think it would be “appropriate” to comment on a political matter. Asked whether she’d be OK with “28 justices,” Jackson replied: “If that’s Congress’ determination, yes. The Congress makes political decisions like that.”
Sen. Thom Tillis, R-N.C., who said he was “impressed” by Jackson, also said he was “disappointed” that she is "reluctant to take a firm public stand" against a "court-packing scheme that represents a fundamental threat to the independence of the federal judiciary."
Sen. Richard Burr, R-N.C., said his "top concern going into our meeting was ascertaining Judge Jackson's position on radical proposals to pack the Supreme Court" and that her answers were unsatisfactory.
Democrats have accused McConnell and other Republicans of hypocrisy for demanding a denunciation from Jackson after they didn't hold Justice Amy Coney Barrett to the same standard in her hearings in October 2020. Asked by Sen. Mike Lee, R-Utah, whether the Constitution says anything about the size of the court, Barrett said it doesn't, adding, "That is a question left open to Congress."
Sentencing record in child pornography cases
Some Republicans attacked Jackson at her confirmation hearings by claiming she handed down softer sentences in cases involving child pornography as a district judge. They pointed to a handful of cases in which she ordered sentences that were below recommendations.
Sen Ted Cruz, R-Texas, repeatedly pushed Jackson about the issue and later published a report claiming, “In every single child pornography case that she heard; Judge Jackson sentenced the defendant below the sentencing guidelines.”
McConnell said, “In the specific area of child exploitation crimes, the nominee was lenient to the extreme.”
Jackson defended her record at her confirmation hearing, saying she takes "these cases very seriously as a mother" and considers a variety of factors, including the recommendations of the parties involved, the evidence, the stories of the victims and other details.
Sen. Josh Hawley, R-Mo., who spent most of his questioning time on Jackson’s sentencing for such cases, said: “As I’ve said over and over, part of my concern with Judge Jackson is that she has not followed the prosecutors’ sentences.”
The White House argued that her approach is firmly in the mainstream, pointing to judges appointed by Republican presidents who adhered to the same sentencing practices.
"The truth is that every single one of the specific senators who joined in these bad-faith attacks on her sentencing record with respect to child pornography has voted for numerous Trump-nominated judges who sentenced defendants for the same crimes in the same fashion, below guidelines widely considered to be out of date across the judiciary and below what prosecutors sought, which is also a norm," White House spokesman Andrew Bates said.
Democrats have opposed conservative judges
For many, it was an unspoken grudge. For some, it was explicit.
During the hearings, Graham peppered Jackson with questions about how Democrats treated past conservative judicial nominees, which she said was outside her lane to address. His insinuation was simple: They treated our judges badly, so don't expect us to vote for theirs.
"The people celebrating this nomination are the same people who filibustered and blocked President George W. Bush’s nominee Janice Rogers Brown" to an appeals court, said Graham, who mused last week that if Brown had been confirmed earlier, she could have ended up being the first Black woman on the Supreme Court.