(WASHINGTON) — The Senate Judiciary Committee on Monday opens a week of high-profile confirmation hearings for Judge Ketanji Brown Jackson, the first Black woman nominated to the U.S. Supreme Court in its 233-year history.
While Democrats have the votes to confirm President Joe Biden’s high court nominee on their own, the hearings could prove critical to the White House goal of securing at least some Republican support and shoring up the court’s credibility.
The spotlight on a historic nominee — and the court itself during such a consequential term of cases — is also an opportunity for both political parties to appeal to key voting constituencies ahead of the midterm campaign season.
Jackson, 51, who currently sits on the nation’s second most powerful court, the U.S. Court of Appeals for the D.C. Circuit, will face questions from the committee’s 11 Republicans and 11 Democrats over two days, starting Tuesday.
Republicans have signaled a desire to scrutinize the substance of Jackson’s record while avoiding the types of personal inquires they opposed in other recent confirmations.
Several GOP senators have telegraphed plans to question Jackson’s defense of detainees at Guantanamo Bay as a private defense attorney; her support of reduced sentences for convicted drug offenders; and the backing of her nomination by outside progressive advocacy groups.
In a sign the hearings could get contentious, Republican Sen. Josh Hawley of Missouri — a former Supreme Court clerk for Chief Justice John Roberts, a potential presidential hopeful and a member of the Judiciary Committee — suggested in a barrage of tweets Thursday that Jackson has a “long record” of letting child porn offenders “off the hook.”
He pointed to aspects of her record from law school, the U.S. Sentencing Commission and decisions from the bench to suggest she is “soft on crime.”
Senate Minority Leader Mitch McConnell, speaking on the Senate floor, said he was concerned that Democrats and what he called Jackson’s “far-left activist” supporters are touting her as someone with “special empathy” after having served as a public defender. “If any judicial nominee does have special empathy for some parties over others, that’s not an asset, it’s a problem.”
White House press secretary Jen Psaki push back hard on Friday.
“After weeks of trying hard to find some way to attack Judge Jackson, first saying that she was an affirmative action pick, then saying she was the product of dark money, then saying she should be — she should be suspect because she was a public defender, a group of far-right Republican senators … have launched a last-ditched eve of hearing desperation attack on her record on sentencing in sexual offense cases,” she said.
“The facts are that, in the vast majority of cases involving child sex crimes, broadly, the sentences Judge Jackson imposed were consistent with or above what the government or U.S. probation [authorities] recommended. And so, this attack that we’ve seen over the last couple of days relies on factual inaccuracies and taking Judge Jackson’s record wildly out of context,” Psaki said.
Both sides are also expected to zero in on Jackson’s nearly 600 written opinions as a federal judge and the 14 times her rulings were reversed or vacated by higher courts, according to a tabulation by the Alliance for Justice, a left-leaning legal advocacy group.
“We know that she is a liberal jurist, but that’s a large spectrum,” said Sarah Isgur, a former Trump administration attorney and ABC legal analyst. “When she was ruling on something related to the Trump administration, she tended to rule against them. And those were the cases that she would sometimes get reversed on.”
Jackson has been vetted twice previously by the Judiciary Committee and twice confirmed by the full Senate as a judge — most recently last year, with Republican votes. She was also confirmed in 2010 as vice chair of the U.S. Sentencing Commission.
“She is not a blank slate. She is someone who has received Republican votes before,” said Rachel Barkow, vice dean of NYU Law School and former Jackson classmate at Harvard Law School. “You can see in her opinions a very principled kind of decision making that the Republicans have said they are looking for.”
GOP Sens. Susan Collins, Lisa Murkowski and Lindsey Graham voted in favor of Judge Jackson’s confirmation to the D.C. Circuit in June 2021. After private meetings with Jackson this month, all three were noncommittal about supporting her again.
Senate Judiciary Committee Chair Dick Durbin has said he is hopeful more than three Republicans will support the nomination this time around. But GOP Whip Sen. John Thune said Tuesday he would be surprised it that was the case.
“I think it’s important to recognize that she has been confirmed three times now, so this is not a candidate who is a blank slate to us,” Collins said after spending more than 90 minutes one-on-one with Jackson. “I will, of course, await the hearings before the Judiciary Committee before making a decision.”
No Republican senator has publicly disputed Jackson’s qualification to be a justice, though several have raised concerns about her rulings and presumed judicial philosophy, which she has insisted she does not have.
“She obviously is someone with a high degree — a very high degree of legal acumen and, I think, grasp of the precedents in court, and so I think her hearings will be very very substantive,” said Missouri Republican Sen. Josh Hawley after meeting the judge this month.
McConnell, who has said there’s “no question” Jackson is qualified for the position, plans to press the judge about proposals to overhaul the high court and expand its membership.
“I didn’t get an answer to that but I’m sure she’ll be asked that again in her hearings before the Judiciary Committee,” McConnell said after meeting with Jackson.
As a double graduate of Harvard and a member of the university’s Board of Overseers, Jackson is also expected to face questions about whether she would recuse herself from a major case this fall involving the school’s use of race as a factor in admissions.
Several Republicans have signaled willingness to ask Jackson about whether she considers herself an “affirmative action” pick for the high court given Biden’s 2020 campaign promise to nominate a Black woman at his first opportunity.
“That could hurt Republicans if they try to spend too much time on this,” Isgur said, “but I expect one of the first questions at this hearing to be: You are highly qualified, but a lot of other highly qualified people weren’t considered for this job because of their race. Would you think that was lawful if it happened at a private employer?”
The White House has said it views courting Republican support for Jackson as important to dialing down partisanship around high court confirmations. The 2020 vote installing Amy Coney Barrett as the newest Supreme Court justice marked the first time no senator in the minority party supported a nominee in at least 150 years of recorded votes, according to the Senate Historical Office.
Jackson has more experience fielding questions during high-intensity Senate hearings than any nominee since Clarence Thomas in 1991. She has described it as an “extremely nerve-wracking” process, telling audiences that she took up knitting as a way to channel nervous energy.
“The lights are as bright as they are in here, in terms of cameras and attention, and you do your best not to make a fool of yourself in front of the senators,” Jackson said in a conversation for the D.C. Circuit Historical Society in 2019.
For each half hour of the proceeding, up to 60 members of the public invited by senators will also be allowed to attend.
The confirmation process has been moving at near-record pace with just 24 days elapsing between the president’s announcement of his pick to replace retiring Justice Stephen Breyer and the scheduled hearings.
The median interlude is 49 days, according to the Congressional Research Service. Republicans’ blitz to confirm Amy Coney Barrett in late 2020 — holding hearings just 13 days after Trump named her — is the quickest confirmation push since 1975.
“She is so thoughtful and even handed and tries to look at both sides, and another amazing thing about her – she’s had such a breadth of experience,” said Senate Democratic Leader Chuck Schumer following his meeting with Jackson.
Democrats hope to confirm Jackson before the middle of April. She is not expected to be fully sworn in for duty on the high court until July, once Justice Breyer steps down.
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