This morning’s announcement by the White House that President Biden had selected Judge Ketanji Brown Jackson of the D.C. Circuit Court of Appeals to succeed retiring Justice Stephen Breyer was hailed by progressives and liberals. But in many ways, the nomination was no surprise. Like the president, Judge Jackson was a former public defender, and the two of them see many criminal justice issues through the same lens. The appointment is thus historic not only because, if confirmed, she would become the first African American woman to sit on the high court, but because she would be the first with experience as a public defender since the late Justice Thurgood Marshall retired in 1991.
The two questions on the minds of many political observers today are 1) does Judge Jackson have the votes in the Senate to be confirmed, and 2) how will the confirmation process play out politically, particularly as the GOP prepares to mount an all-out campaign to retake Congress in November? Let’s take a closer look.
Judge Jackson won confirmation to the Court of Appeals for the D.C. Circuit less than one year ago in a 53-44 vote when she replaced Merrick Garland, who had been appointed as attorney general. All Democrats, including Sens. Manchin (D-WV) and Sinema (D-AZ), voted to confirm her to the bench, and they were joined by three Republicans: Sens. Susan Collins (R-ME), Lisa Murkowski (R-AK), and, to the surprise of some, Lindsey Graham (R-SC). “I think she’s qualified for the job,” Sen. Graham said of Judge Jackson at the time. “She has a different philosophy than I do,” he added.
This sentiment was echoed by Former House Speaker Paul Ryan, who spoke favorably at Jackson’s prior confirmation hearing. In the small world of politics, Ryan is related to Judge Jackson by marriage (her husband, Dr. Patrick G. Jackson, is the twin brother of Ryan’s brother-in-law) and he has gotten to know her personally. “Our politics may differ, but my praise for Ketanji’s intellect, for her character, for her integrity, it is unequivocal,” Ryan said of her during the hearing. “She is an amazing person, and I favorably recommend your consideration.”
Sen. Graham, however, signaled his displeasure this morning over the choice of Jackson when his own preferred candidate, Judge J. Michelle Childs—who like Graham is from South Carolina and happened also had the powerful backing of House Majority Whip Rep. Jim Clyburn—did not receive the nod. Graham tweeted:
“If media reports are accurate, and Judge Jackson has been chosen as the Supreme Court nominee to replace Justice Breyer, it means the radical Left has won President Biden over yet again.
The attacks by the Left on Judge Childs from South Carolina apparently worked.
I expect a respectful but interesting hearing in the Senate Judiciary Committee.
The Harvard-Yale train to the Supreme Court continues to run unabated.”
(The last statement is rather curious, given that recent Trump nominees, Justices Gorsuch and Kavanaugh, studied law at those very same two Ivy League schools.)
Whether Sen. Graham will have a change of heart and choose now to vote with most of his Republican colleagues remains unclear. And while Sen. Murkowski voted for Jackson before, there’s no absolute guarantee that she’ll do so again, as she indicated in a recent interview. Meanwhile, the often feckless Sen. Collins has described President Biden’s pledge to nominate a black woman to the court “clumsy at best” and has not indicated her support as of yet.
Still, it is very unlikely that all three Republican senators will switch their votes, and it is equally unlikely that Sens. Manchin or Sinema will extend their opposition to key aspects of the Biden agenda and their support of the filibuster to actually derail a Supreme Court nominee. At the end of the day, it remains highly likely that the vote will be above 50 senators for Judge Jackson’s nomination.
The inevitability of a confirmation, absent some unforeseen development, won’t stop conservatives and the GOP from using the opportunity to press their case that Judge Jackson is more of the same from the “radical left.” We should expect that her past record of defending criminals—something that is built into our system of justice—will be front and center in the hearings with Republicans seeking to paint the Democrats as soft on crime. This will have appeal for the Republican base as well as moderate voters who are increasingly worried about rising crime rates.
During her last confirmation hearing for the D.C. Circuit Court of Appeals, one Republican senator provided a taste of what we might expect, asking Judge Jackson whether she had concerns that her former experience as a public defender could wind up putting more criminals back on the street. She turned this question around on him deftly. “Having lawyers who can set aside their own personal beliefs about their client’s alleged behavior or their client’s propensity to commit crimes benefits all persons in the United States,” she said in a written response, “because it incentivizes the government to investigate accusations thoroughly and to protect the rights of the accused during the criminal justice process.” Still, we can expect the GOP to try and score political points with the idea that the new justice will somehow empty our prisons of hardened criminals and allow them out among society.
Conservatives will also waste no time playing the race and gender card to seek to tie her nomination to the notion of “woke politics” that is fueling much of their current local activism and fundraising. And they will certainly seek to impugn Judge Jackson’s stellar record as merely some kind of affirmative action-laden choice. On this point, they have already been preparing their supporters. “We can’t allow Biden to give a lifetime appointment to a radical judge simply because she checks the right identity boxes demanded by the left,” wrote Brian S. Brown, the president of the National Organization for Marriage, in a recent fund-raising appeal. Similarly, Carrie Severino, the president of Judicial Crisis Network, wrote this month that Democrats “want payback for their dark money spending in the form of a Supreme Court justice who will be a rubber stamp for their unpopular and far-left political agendas.”
Judge Jackson’s supporters have been quick to come to her defense, noting that her 8.9 years of prior judicial experience is greater than the cumulative sum of bench years logged by four other justices who were confirmed: Thomas, Roberts, Kagan and Barrett. This makes her one of the most qualified nominees ever to be put forward and strongly undercuts the right’s arguments that she is in some way merely a token minority woman.
Given what we’ve already seen, the confirmation hearings are likely to hold a mirror up to the conflicts playing out across the nation on race, crime, identity and justice. Democrats have an opportunity to take the high ground and portray attacks on Judge Jackson as veiled racism or sexism—as well as to galvanize the base around the idea of the Democrats as the party of inclusion, representation and progress. In a key election year, this could provide much-needed fuel to help close the enthusiasm gap and turn out voters in November.
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