Question: The evidence suggests Ketanji Brown Jackson is a highly qualified, mainstream judge. The American Bar Association rated her as “well qualified,” its highest rating. She was endorsed by the National Fraternal Order of Police. Eighty-three former state attorneys general, Democrats and Republicans, called on the Senate to approve her nomination “as quickly as possible.”
Yet some senators, in their questioning, accused her of being soft on child pornography because of the sentence she handed down in one case involving an 18-year-old found to possess child pornography. Some suggested she was soft on crime because as a federal public defender, she was assigned to defend detainees at the Guantanamo Detention Center.
And Senate Majority Leader Mitch McConnell accused her of being in favor of “court stacking” because, in response to a question, she said she did not take a position on enlarging the Supreme Court since that was the province of Congress, but added, “I would be thrilled to be one of however many (judges) Congress thought it appropriate to put on the court.”
In the end, she was confirmed 53-47, with three Republicans voting “yes.” Then, as senators who voted for her applauded the first African-American woman to ascend to the Supreme Court, McConnell and other Republicans walked out.
Was the confirmation in line with Supreme Court confirmations in both Republican and Democrat administrations over the past 20 years, or was it a blot on the decorum of the U.S. Senate and what we once thought was a tradition of keeping politics out of judicial confirmations?
The answer to this question is, “Yes,” and that is also the problem. Democrats should look to their unseemly actions during the confirmation hearings of Justices Amy Coney Barrett and Bret Kavanaugh before they venture out on the limb on the issue of maintaining decorum and keeping politics out of judicial confirmations. By comparison, Justice Brown Jackson’s hearings were tame, respectful and dignified.
April 7, 2022 should go down in history as the date America showed that it has eschewed every semblance of racism or gender bias in its institutions of government. Ms. Brown-Jackson presented herself as intelligent, affable, thoughtful and dignified in her Senate hearings.
The fact that she was approved by only a three-vote margin is more a reflection of the charged political atmosphere in Washington, D.C. than any sort of repudiation of her qualifications to sit on the highest court in the land.
In 1986, Antonin Scalia was confirmed unanimously. Justice Stephen Breyer, whose seat Ms. Brown Jackson is nominated for, was himself confirmed by an 87-3 margin. Those two men could not be more polar opposite in their politics, yet those confirmations were made on the basis of their qualifications, not their politics.
Today, it appears that regardless of the nominee’s qualifications, confirmation is conditioned solely on which party is in power. I think that’s sad, intellectually dishonest and dangerous.
I’m a conservative and have a strong preference for justices who share my political philosophy. But I am also a thinking American who recognizes the need of absolute impartiality on the court. Is Justice Brown-Jackson capable of setting her liberal biases aside in favor of impartiality? I hope so, I pray so, but only time will tell if she rises to the stature of her appointment.
Alison’s first response:
Steve, Judiciary Committee hearings have become highly visible opportunities for senators to show their political ambitions, to rally support among their voting bases and develop inflammatory verbal “hooks” to use against their opponents.
You state that GOP senators were “tame, respectful and dignified.” I disagree. Ted Cruz used his questions to bate Judge Jackson and to dog-whistle to his voting base, tying this highly qualified African-American female judge to critical race theory (which has nothing to do with her judicial duties or decisions).
Sen. Josh Hawley, knowing that many right-leaning judges gave shorter-than-recommended sentences to convicted pornography users, implied that Judge Jackson was soft on pedophiles, a call-out to Q-anon theorists.
Lindsay Graham, despite his supposed determination to rise above his Senate colleagues, just could not help himself. He blamed Judge Brown for everything from the withdrawal of Afghanistan to the treatment of Brett Kavanaugh. And Republican Marsha Blackburn implied that Judge Jackson couldn’t define the term “woman.” Little wonder that even Republican Ben Sasse called the judiciary committee “a place of grandstanding and rabid partisanship.” He referred to his GOP colleagues’ behavior as “jack-assery.”
Despite the senators’ posturing and pompous verbiage, Judge Jackson retained her judicial demeaner. She patiently and respectfully addressed each question, in the face of the senators’ lack of respect. She is not only academically qualified to join the Supreme Court; her steady and balanced temperament almost certainly will raise the bar of civility, impartiality and maturity among the justices.
I hope you are right, Alison. Thank goodness our justices do not behave like some of our senators, left or right…at least not yet.
Lost in the shuffle of all this extraneous noise is what I believe to be the most important question: How will Justice Jackson interpret the Constitution?
Will she stick to what it says, or will she be an activist judge who plays fast and loose with the clear language of the Constitution, or even ignore its language if it fits her political persuasion?
She refused to answer questions on Roe v. Wade, or even to describe what the word “woman” means. What I think the hearings did provide us a glimpse of was the fact that she is a genuinely nice person. She is clearly highly intelligent and appears to be the type of person other justices would enjoy sitting with on the bench.
But qualifications mean more than just measuring one’s intellect. The true measure of Justice Brown Jackson will not be known until she reveals her impartiality. How she reacts and rules when confronted with an issue where constitutionality and her personal political beliefs conflict will be the true measure of her character. To coin a jurisprudential phrase, the jury is still out on that.
You’re correct: we don’t know how the new combination of justices will work. I hope that Justice Brown will have a positive effect on the court, which is currently trending in a worrying direction. I’m concerned that the newer justices, particularly Amy Coney Barrett, are showing a preference for using the “shadow docket” to make decisions.
This is used when the Court believes an applicant will suffer “irreparable harm” if its request is not immediately granted. Historically, the shadow docket was rarely used for rulings of serious legal or political significance. Since 2017, the shadow docket has been used much more often. The practice has been criticized for bias, lack of transparency and lack of accountability, and Chief Justice Roberts is increasingly uncomfortable with the practice.
I think it’s possible that Justice Brown might be a measured, reasonable voice among her colleagues to slow down this tendency.
I would also hope that she might encourage justices who have a conflict of interest or bias about an issue to step aside from participating in a case.
For instance, Justice Thomas’s wife’s efforts to overturn the 2020 election and to spread conspiracies have recently been exposed. Since he’s said they invariably agree, he probably should have recused himself in some of the cases brought before the court in the aftermath of the election.
Justice Brown’s influence on the court, at least in the short run, will not affect the liberal/conservative ratio; however, it is my hope that her patient, reasonable influence will restore some balance.