WASHINGTON — The Republican manipulation of Judge Ketanji Brown Jackson this week was compelling evidence that the Senate Supreme Court confirmation process has been irretrievably broken.
Judge Jackson’s aggressively hostile interrogation, with political dog whistles and relentless re-litigation of past Supreme Court feuds, marred what could have been not only a Senate reset, but a significant national moment seeing the first black woman rise with strong support to the pinnacle of American jurisprudence.
Instead, it was an escalation of what’s happened in recent years: toxic partisanship, bitter attacks, and vicious questions full of allusions about the alleged character flaws of a nominee likely to bear the scars across the street to the Supreme Court.
“Do you believe that child predators are misunderstood?” Tennessee Republican Senator Marsha Blackburn posed one of many fraught questions aimed at defining Judge Jackson as some sort of pedophile activist, despite years of acclaimed service on the bench.
“Can you honestly judge a Catholic?” asked South Carolina Republican Senator Lindsey Graham, one of Judge Jackson’s main opponents, despite having voted last year to promote her to a highly influential appeals court, one of only three Republicans to do so.
“Do you agree with this book teaching kids that the babies are racist?” asked Texas Republican Senator Ted Cruz, who also took on the task of lecturing Judge Jackson, whose parents had attended segregated schools, on the teachings of Rev. Dr. Martin Luther King.
She was questioned about the definition of “woman” at a time when transgender rights are a hot-button issue, and repeatedly offended about her views on anti-racism and critical race theory.
If there was a Supreme Court confirmation that could have gone differently, it was this one.
Judge Jackson is a historic nominee and is rated highly qualified even by her critics. She has been vetted and confirmed three times by the Judiciary Committee and the Senate, the last time less than a year ago for the appellate court position. Her approval would not change the ideological makeup of the court, and significantly lower the stakes of her confirmation.
Republican leaders were determined to show they could outperform the Democrats by respectfully challenging the opposing party’s presidential candidate. And they feared that the tableau of white Republican men colluding against a black woman wouldn’t fit well in an election year.
But the Republicans couldn’t help it. During long days of interrogation, many of them tried to destroy Judge Jackson, or at least drag her through the mud on the way to a confirmation that they knew would be certain if the Democrats stayed united behind her.
In the end, the pull of media attention coupled with the strong pull of their party’s right fringe proved too much for many Republicans to resist. The stakes for a lifelong seat on a court that will decide some of the most polarizing issues in a divided country has become too high, the politics surrounding the court too powerful.
In addition, Republicans continue to seek revenge for the Democrats’ 35-year-old treatment of their party’s nominees, and they are especially outraged at what they perceive to be the vicious attacks on Judge Brett M. Kavanaugh by Democrats during his confirmation four years ago.
“We need to hit back,” North Dakota Republican Senator Kevin Cramer said, lamenting the sharp deterioration in the confirmation climate and the difficulty of course correcting.
But Judge Kavanaugh was charged with sexual assault by someone who agreed to testify under oath at his hearing, a very different circumstance from Judge Jackson, who faced a barrage of questions suggesting she was a radical. on social issues and a coddler of child molesters. And while the Kavanaugh hearings were explosive, at least the Democrats agreed to hold them, unlike the Republicans who blocked Merrick Garland, President Barack Obama’s 2016 nominee.
This time, Democrats were outraged, though not surprised, by the attack on Judge Jackson over a Republican presentation of verdicts in widely discredited child sexual abuse cases, not to mention the accusatory questions, frequent interruptions and lectures to which she was subjected. Georgia Democrat Jon Ossoff said he found many of the Republican attacks “cruel and unfair.”
“You were dealing with insults here that were shocking to me,” said New Jersey Democrat Senator Cory Booker and the only black member of the committee, then paused before adding, “Well, not shocking really.”
Democrats argue that Republicans took advantage of the complexity of the law and convictions surrounding sexual abuse cases to grossly distort Judge Jackson’s criminal record in a handful of cases. They note that Republicans on the panel voted for Republican-nominated judges who sent child sex offenders to prison on lower terms than recommended by the government and never said anything about it.
“It’s hypocrisy with a capital H,” said Connecticut Democrat Senator Richard Blumenthal.
Even after the interrogation ended, Republicans weren’t done. Cruz led some demanding a postponement of the committee vote until the confidential sentencing documents in each of the child abuse cases that Judge Jackson dealt with had been turned over for review — still seeking more ammunition against her. Democrats fired that option, causing Republicans to threaten to boycott any committee vote and block the nomination.
That idea seemed to fall apart when Republicans realized what it would look like. The vote in the committee is now scheduled for April 4.
Republican members of the committee appeared to have little or no regrets about their treatment of Judge Jackson.
“I don’t think it was that brutal,” said Arkansas Republican Senator Tom Cotton, who called Judge Jackson a “leftist activist.” “We just doubted her judgment.”
That ties in nicely with Republicans’ strategy for the upcoming midterm elections, in which they want to use rising crime as a weapon against Democrats. They saw Judge Jackson’s appointment — and her history as a public defender — as a way to capitalize on it.
Announcing his opposition to Judge Jackson on Thursday, less than 24 hours after her testimony ended, Kentucky Republican and minority leader Senator Mitch McConnell noted that she gave “certain terrible types of criminals light sentences” and that the nation currently “Amid a national wave of violent crime and exploding illegal immigration.”
Senator Richard J. Durbin, the Illinois Democrat who chaired the committee’s hearings, immediately responded to Mr. McConnell, saying, “Republicans are testing their messages before the November election.”
He also said it would be bad for the nation if Judge Jackson didn’t win Republican votes. Like many others, he found the confirmation process more of an ordeal than a legitimate investigation, given the toll it takes on a candidate who has been a highly acclaimed person right up to the Senate’s downfall.
“I think we should try to change the process and make it a little bit more humane,” said Mr Durbin.
Where this leaves the state of Supreme Court ratings is hard to know. The Jackson hearing appeared to open a new frontier in defamation by focusing so heavily on her sentencing history, meaning any sentences uttered by prospective nominees will now become fodder for attacks.
Some senators were hopeful that this episode could finally force a reassessment. Rhode Island Democrat Senator Sheldon Whitehouse said the hearings had revealed “a truly toxic, cynical behavior that has ravaged the very bottom of what the Senate has done in dark times.”
“Let’s hope that was the low, and we’re going back from that low,” he said.