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  • Will Allen

The partisanship behind Judge Jackson's Supreme Court confirmation


Senator Warner meets with SCOTUS nominee Judge Ketanji Brown Jackson.

On Monday 21st March, the Senate Judiciary Committee convened to vet Biden’s Supreme Court nominee, Ketanji Brown Jackson, in a historic set of back-to-back hearings. The three gruelling days of committee hearings made one thing clear: repulsive partisan battles over court nominees have become the norm by which the Senate operates. Having once been a spectacle reserved for the most extreme nominees, the past week has highlighted that it has become habitual where even the most qualified of nominees like Jackson must endure such spectacles. While Democrats celebrated their nominee in the hearings, Republicans battered Jackson and at times Democrats, with their incivility, outright lies, and even extraneous remarks of ‘anti-racist babies’.

Joe Biden and the Democrats told America his nominee would be historic; Ketanji Brown Jackson delivers on this. As a nominee, Jackson brings many unique aspects with her: the first nominee to be a black woman, the first to be a federal public defender, the first to be a criminal defence attorney since Thurgood Marshall, and will be the only member of the court to have sat on the federal sentencing commission. She would not only bring much-needed diversity to an institution that barely looks different since its founding, but a wealth of experience that other nominees have never offered the court. Jackson’s nomination is also significant as her appointment to the court would mean the three justices appointed by Democratic presidents are all women.

Her prior work would bring critical legal diversity to the narrow legal composition of a ridged Supreme Court. Presidents for too long have prioritised judges with corporate and prosecutorial backgrounds, with this step-change Biden has opted to open the court up to new legal perspectives. Working as a federal public defender Jackson has been heavily influenced by the inherent unfairness within the system when representing poor defendants in criminal cases. This alongside her work on the sentencing commission, a body dedicated to the promotion of transparency and proportional sentencing, gives Jackson the critical “awareness of the other side of the criminal justice system”.

For the Democrats, this should have been a proud victory lap, after more than a decade of waiting they have the chance to elevate a young, highly-skilled, barrier-breaker to the court. They commenced the hearings with praise and admiration for her courage in ascending a system that has for too long prioritised a small sect of the population. Sadly, with the opening statements complete, Democrats all but acquiesced to Republican committee members who hijacked the agenda for the next two days of questioning – a mistake they could have easily forgone. With such a mistake, Democrats failed to introduce their nominee to the American public on the points she deserved to be acknowledged for.

Early in the confirmation hearings, Republicans used their time to dredge up the past. They lashed out and complained at great lengths about the cruel treatment of their nominee Brett Kavanaugh in 2018. Republicans proudly asserted this time would be different – they wouldn’t ‘lie’, ‘shout down committee members’, or attempt ‘character assassination’ of the nominee. As Lindsey Graham put it “none of us are going to do that to you, and if any of us does that to you, all hell will break out, and it should”.

Aggrieved and unsure how best to oppose Jackson, Graham and Republicans failed to recall that their nominee stood accused of attempted rape, sexual assault and attempts to cause girls to become intoxicated to the point they could be raped by their nominee and his friends. The battle in 2018 was not - as Ted Cruz tried to correct the record - over mere “teenage dating habits”. On the second day, Graham recommenced his tiresome list of past complaints by questioning Jackson on her religious beliefs, not to reveal something truly substantial, but to ensure he could once again whine about the supposed unfair treatment of Amy Coney Barrett at her confirmation hearings. From day one, Republicans like Graham proved they had little if anything to bring to the hearings.

With the past truly exhausted, Republicans paraded out the culture wars and conspiracies they have become intrinsically tied to. The most persistent attack lines came on Jackson’s work as a federal public defender and sentencing record. Republicans accused Jackson of overzealously representing detainees at Guantanamo, even though that is what the law requires – spirited and zealous representation of all clients. Rather, in attacking Jackson Republicans were attacking the very constitution they insist they fight to preserve and protect every day. Jackson went to great lengths to explain this, however, the truth just enraged them further (to the point some had to storm out of the room in dramatic fashion).

They also accused her of being lenient when sentencing cases of child pornography. A repetitive attack that drew on the party’s alignment to the QAnon conspiracy group. This honed questioning on Jackson’s sentencing record reveals who the party wishes to speak to in the run-up to the Midterms – fringe conspiracists. As a nominee, Jackson firmly rebutted this severe mischaracterisation of her record – the system was broken, as a judge she had to work with it, applying sentences as consistently as possible. Still, 2024 hopefuls such as Josh Hawley couldn’t resist listing out all the ‘below guideline’ sentences Jackson had handed down – after proudly completing the list he was reminded by Senator Durbin that he has previously confirmed two judges with near-identical sentencing records.

Ted Cruz, another senator with an eye on 2024, subjected Jackson to the most far-reaching conspiracies. Obsessed with trying to score political points, Cruz became aggressive and unhinged from reality. He criticised a book featuring ‘anti-racist babies,’ going to great lengths to question Jackson about whether babies were in fact racist. To much of her questioning, Jackson had to simply reply, “It doesn't come up in my work as a judge”. For many observers, these smears reflected more on Jackson's inquisitors than herself.

This latest saga in Supreme Court confirmation hearings, full of incivility, baseless smears, and character attacks, did little to change the final outcome. However, for many observers, Ketanji Brown Jackson’s impeccable conduct, calmly sitting through more than 20 hours of questioning by often irate or irrational Republican senators, spoke to their experiences. Touchingly Jackson was moved to tears, not by the smears and attacks, but the joy of Democratic Senator Booker – “Nobody's going to steal that joy. You have earned this spot. You are worthy. You are a great American”. With 50 Senate Democrat votes behind her, Jackson seems assured to receive the senate’s assent to send her to the nation’s highest court.

Image - Flickr (Mark Warner)



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