Supreme Court nominee Judge Ketanji Brown Jackson has made it through the first three days of the Senate Judiciary Committee’s confirmation gantlet with grace under fire and forceful conviction. But her steely patience has clearly been tested by the panel’s GOP senators. Their partisan attacks and showboating offer a typology of current Republican dysfunction. We should expect more of the same in what remains of this hearing — and, alas, this Congress.
Several of the panel’s GOP senators repeated a hypocritical criticism of Jackson’s “troubling” support by dark money liberal groups. Sen. Chuck Grassley, R-Iowa, Lindsey Graham, R-S.C., and John Cornyn, R-Texas, all sought to tie Jackson and her judicial philosophy to groups that wield political influence while concealing the origins of their funding.
On Tuesday, it fell upon Sen. Sheldon Whitehouse, D-R.I., to point out the asymmetry between the influence of dark money on the right and the left. Conservatives, he countered, have raised $400 million to “remake” the nation’s courts. “There is a world of difference,” he stated, “between rooting for someone to be put on the court and controlling the turnstile” as to who gets nominated.
Whitehouse was referring to former President Donald Trump essentially outsourcing his judicial nominations to the right-wing Federalist Society. “There’s pretty clear agreement that that selection process took place outside the public eye,” Whitehouse said, “and under the influence of dark money.”
“Do as our judges say, not as they do”
A theme frequently struck by Republican senators was that they merely seek “judicial restraint.” As Grassley put it, “When judges... rewrite laws, it makes it harder for us here in Congress.” Similarly, Cruz claimed that “our Democratic colleagues who want the Supreme Court to be a policymaking body ... take policy away from the American people.”
Jackson made clear that she is not an “activist” judge: “I believe that judges are not policymakers,” she said in response to Cornyn. “That we have a constitutional duty to decide only cases and controversies that are presented before us. Within that framework, judges exercise their authority to interpret the law, and not make the law."
Jackson’s deft handling of the senators’ accusations aside, the Republicans’ focus on judicial restraint is rich. It was a conservative court majority that gutted the 1965 Voting Rights Act, a clear act of judicial activism. In 2013, in Shelby County v. Holder, the court ruled that the Justice Department could no longer enforce Section 4 of the act, on the purported grounds that its goal of restoring voting rights had been sufficiently accomplished. In 2020, the (still conservative) court eviscerated another key provision of the act in Brnovich v. Democratic National Committee.
Jackson’s deft handling of the senators’ accusations aside, the Republicans’ focus on judicial restraint is rich.
The Voting Rights Act does not say that its provisions would remain effective only until the Supreme Court determined they were no longer needed. Nonetheless, the court took the law into its own hands and effectively rewrote it out of existence, a premature maneuver which has helped open the floodgates to unprecedented new voter suppression laws.
That did not bother Cruz, Graham or Grassley, of course. All applauded the Shelby decision after it was rendered. None worried that it was pushing the limits of the judicial branch or trampling over the legislative one.
Take the high road when it’s the only option
Republicans’ first-day theme was civility. Their side would not engage in ad hominem attacks, Graham, Cruz, and others pledged.
Cruz sneered, in an unsubtle reference to the allegations discussed at Justice Brett Kavanaugh’s confirmation hearing, that no senator would ask Jackson about her “teenage dating habits ... or commit a ‘high-tech lynching,’” borrowing Justice Clarence Thomas’ words.
On the other hand, why would anyone have any basis to bring up Jackson’s teenage relationships? Jackson has not made anyone fear that they were about to be raped, as Christine Blasey Ford testified Kavanaugh made her feel in their youth. (Kavanaugh has denied this claim.) No witness like Anita Hill has come forward to claim that the nominee sexually harassed her. (Thomas denied this claim.) Republicans have no basis to challenge Jackson’s nomination based on personal history or character.
When grounds for personal attack are nonexistent, the committee’s Republicans wrap themselves in virtue.
Questions that smear
The Republican senators promptly found other ways to attack Jackson. Mainly they did this through the use of pointed caustic questions whose point was the subject, not the answer.
Cruz, Graham, Arkansas Sen. Tom Cotton and Missouri Sen. Josh Hawley examined Jackson’s sentencing of child pornography defendants. She gave convincing answers that explained the complex factors Congress prescribed. But nuance is not a strong suit of the GOP base. We can expect her words to be twisted via “soft on crime” innuendo and the QAnon pedophile messaging.
Graham and Cornyn focused on her representation of Guantanamo detainees. Her answer that the Supreme Court had affirmed the Constitution’s protections for enemy combatants did not stop Graham from arguing, in a made-for-Sean-Hannity bit of TV drama, that he hoped those left in Guantanamo will die in prison. He then stormed off in a videoed huff.
Cruz and Tennessee’s Marsha Blackburn interrogated Jackson about their favored racial dog whistle, “critical race theory.” Jackson’s response, that CRT is an academic framework that belongs in law schools and which has had no place in her judicial views, was ignored.
Blackburn also asked Jackson to define womanhood, a bizarre request that Jackson of course refused to answer, properly noting that she was not a biologist. But once again, Jackson’s answers or nonanswers were irrelevant; press the big red culture-war button of transgender and the Fox News chyron may as well write itself.
Sour grapes and flip-flops
His strategy? Turn to a familiar foil: progressives. On Tuesday, he asked Jackson whether she had noticed “a lot of people on the left” were trying to undermine a South Carolina federal judge named Michelle Childs, who had been rumored to be among the contenders for the nomination. “There has been a wholesale effort of the Left to take down a nominee from my state,” he said Monday. “If that’s the way the game is going to be played, then I’ll have a response, and I don’t expect it to reward that way of playing the game.”
Such excuse-making, couched in faux indignation, makes a mockery of the proceedings, ignores Jackson’s extraordinary accomplishments, and is irrelevant to what her tenure on the nation’s highest court would look like. Ultimately, that is the stated purpose of the hearings, if not their reality.
All in all, this week’s hearings have shined a light both on Jackson’s intellect and character, and on the GOP’s disheartening status quo. Jackson will likely be confirmed. But Americans will also remain stuck with this brand of Congress — with its Republican pandering and toxic dysfunction — for the foreseeable future.
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CORRECTION (March 24, 2020, 7:00 p.m. E.T.) A headline on a previous version of this article misstated the name of the Supreme Court nominee. She is Ketanji Brown Jackson, not Ketanji Jackson Brown.