WASHINGTON — Senate hearings are set to take place this week in a historic confirmation battle over the first Black woman ever nominated to serve on the Supreme Court.
President Joe Biden's pick, Judge Ketanji Brown Jackson, goes before the Democratic-led Judiciary Committee on Monday for a high-stakes showdown to replace retiring Justice Stephen Breyer and win a lifetime appointment to the country's highest court.
The day is set to feature opening remarks by the chair and members of the committee, followed by remarks from Jackson, a judge on the powerful federal appeals court for Washington, D.C., who has been making the rounds on Capitol Hill to meet with senators. Monday will provide a glimpse into how contentious the confirmation battle may get before Jackson faces two days of senatorial questioning.
Judiciary Committee Chair Dick Durbin, D-Ill., said Sunday that Jackson has been confirmed by the Senate three times — twice with no opposition to the United States Sentencing Commission and to the federal district court for Washington, D.C., and last year by a vote of 53-44 to the appeals court.
“Judge Jackson has been scrutinized more than any person I can think of. This is her fourth time before the Senate Judiciary Committee,” Durbin said on ABC’s “This Week.” “In three previous times, she came through with flying colors and bipartisan support.”
The confirmation battle will pose a major test for Durbin, many of whose priorities on the Judiciary Committee — including overhauling immigration, gun control and voting rights — have been stymied by Republican opposition and the 60-vote rule for legislation. He has said he wants the full Senate to confirm Jackson by April 9.
Chuck Grassley of Iowa, the top Republican on the Judiciary Committee, said he and Durbin “have a good relationship.” He said that he expects Durbin to treat GOP members fairly and that he isn't considering drastic moves to gum up the proceedings.
“We’re going to be ready to go March 21,” Grassley said in an interview last week. “I don’t see any impediment.”
The hearing is scheduled to begin at 11 a.m. local time, and Jackson is poised to be introduced by Thomas Griffith, a conservative retired member of the D.C. circuit court, and by Lisa Fairfax, a professor at the University of Pennsylvania law school, the committee said.
She is likely to face questions about her judicial philosophy and her outlook on a variety of hot-button issues, like abortion, gun rights and federal authority to legislate commerce. The trend in recent decades has been for high court nominees to reveal as little as possible about how they would rule in major cases.
In a new Monmouth poll released Monday, 55 percent of Americans said Jackson should be confirmed, while 21 percent said she should not be and 24 percent had no opinion.
The White House's strategy
The committee is split evenly between members of the two parties in the 50-50 Senate. It's unclear whether Jackson will win any support from Republicans on the committee, but as long as the Democrats stick together, they can advance the nomination to the full Senate, where 50 votes are required to ensure Jackson's confirmation.
Democrats' priority is to keep their members on board, and so far there has been no stated opposition from within. The White House says it wants bipartisan support, and some GOP senators have expressed openness — including Susan Collins of Maine, Lisa Murkowski of Alaska and Mitt Romney of Utah.
The White House, which has faced claims that Jackson isn't tough enough on crime, plans to tout her endorsements from retired conservative judges like Griffith and Michael Luttig, a former federal appeals judge, as well as support from police chiefs and 83 former state attorneys general. White House officials, anticipating attacks on Jackson's judicial philosophy, also plan to defend her approach to judging as being based in fact and law, not ideology, said a source familiar with the strategy.
Republicans on the committee include some conservative senators with national ambitions — such as Ted Cruz of Texas, Tom Cotton of Arkansas and Josh Hawley of Missouri — who will look for opportunities to score points with GOP voters.
Last week, Hawley issued a series of tweets arguing that Jackson isn’t tough enough on sex offenders who prey on children. White House spokesman Andrew Bates, pointing to fact checks that debunk the claims as misleading or distortions of her record, assailed Hawley’s “desperate conspiracy theory” and said it was based on “toxic and weakly-presented misinformation.”
Privately, some Republican senators don’t expect a pitched battle, particularly after they used extraordinary tactics over the last six years to create a 6 to 3 conservative majority on the court. That includes denying President Barack Obama the chance to fill a vacancy in 2016, nuking the filibuster for Supreme Court nominees during the Trump administration and confirming a justice on a party-line basis the week before the 2020 election.
'A historic moment'
Senate Minority Leader Mitch McConnell, R-Ky., has focused his fire less on Jackson and more on liberal activists who support her nomination, primarily the group Demand Justice. He said Sunday that he wants her to "defend the court" and oppose adding seats to it, faulting her for not having spoken out against the left's push to do that.
"In the meantime, the committee will ask her all the tough questions," McConnell said on CBS's "Face the Nation." "I haven’t made a final decision as to how I’m going to vote."
The most recent Trump appointee to the court, Justice Amy Coney Barrett, similarly declined to answer when she was asked about expanding the court at her October 2020 hearing. "That is a question left open to Congress," Barrett said under questioning from Sen. Mike Lee, R-Utah. "It's difficult for me to imagine what specific constitutional question you're asking. And of course, if there were one, I couldn't opine on it."
McConnell fast-tracked Barrett's nomination and voted for her.
Jackson has been chosen to replace one of the court's three liberals and wouldn’t disrupt its balance, which senators in both parties say could lower the temperature of the debate.
"It's a historic moment," said Sen. Mark Warner, D-Va. "At least so far, other than the more extreme Republicans, it's not like anyone's put up any meaningful opposition. You started off with a relatively small universe of possible votes."
Warner said the backdrop of war in Ukraine and the overarching struggle for democracy could cool the tone of the hearings.
"Ukrainians are giving their lives to have things like free press, open judiciary, your vote being counted — the kind of things we take for granted — and we're confirming a historic, extraordinary, well-qualified Supreme Court nominee," he said. "This would be absolutely the worst time to have these hearings turned into a political sideshow."