Senate Judiciary Committee hearings for Supreme Court nominees have long drifted into the realm of inconsequential theater.
Rarely is there any true attempt to discern nominees’ qualifications for the job, or what might disqualify them. Since President George W. Bush got slapped down for nominating his White House counsel, Harriet Miers, to replace retiring Justice Sandra Day O’Connor in 2005, presidents have, for the most part, been careful to ensure that nominees have defensible — and often exemplary — pedigrees.
At the same time, the confirmation process has devolved into a petty partisan exercise. The party with the most votes in the Senate will get its way, regardless of what the hearings may reveal.
As FiveThirtyEight pointed out last month:
“Since [Justice Stephen] Breyer’s confirmation, four of the seven confirmed justices received less than 60 percent overall support in the Senate, and those four each earned support from less than 10 percent of the opposing party’s senators. This includes all three of former President Donald Trump’s Supreme Court picks, who progressively received less bipartisan backing: Neil Gorsuch got just two Democratic yeas in April 2017, Brett Kavanaugh one in October 2018 and Amy Coney Barrett zero in October 2020.”
Nominees have learned not to say much of consequence, which reduces the hearing to assessments of rhetorical performance and physical stamina. The nominee’s demeanor and comportment become signifiers of fitness to serve.
And even then, they are no guarantee of how the hearings will go. In fact, the confirmation hearings of Brett Kavanaugh in 2018 may well have been the death knell for the decisiveness of these hearings. He was accused of sexual assault by Christine Blasey Ford. An investigation into the matter was rushed and incomplete. Republicans complained that a good man’s reputation was being destroyed. Kavanaugh raised his voice and choked back tears in his own defense. He was confirmed anyway.
That brings me to the spectacle we are seeing in the confirmation hearings for Judge Ketanji Brown Jackson. There is no doubt that she is qualified. There is also no doubt that, if Democrats simply stick together, she can be confirmed without any support from Republicans.
So what does one do when a nominee’s ascension to the bench is most likely a foregone conclusion? You use that big stage and the bright light to put on a show. In many ways, Judge Jackson is just a prop in that show, the reason all 22 members of the Senate Judiciary Committee are gathered for this performance, but nothing more. In many ways, she is being used.
For the Republicans, these hearings present an opportunity to rehabilitate Kavanaugh, to rewrite history to pretend that the reason he had a tough confirmation hearing was because Democrats lacked civility, not because Dr. Ford had leveled a damning accusation against him. The Republicans have invoked Kavanaugh repeatedly over the last few days, and yet Dr. Ford never gets so much as a reference. She is being erased from this history altogether. Republicans are crafting their own judicial “Lost Cause” narrative around Kavanaugh.
In that way, Judge Jackson’s accomplishments are being used against Dr. Ford’s courage. It does a disservice to both women, positioning them as mere pawns in men’s power struggles.
Judge Jackson is also being used in the sense that Republicans are framing her as a proxy for Democrats whom they want to brand as “soft on crime.” But it is Jackson who is taking the brunt of the criticism, as her sentencing record is what’s being critiqued.
Women in the justice system, from police officers on the streets to the judges in the courts, too often have their toughness tested. The sexist implication is that women may be more likely to respond emotionally and compassionately when a dispassionate reading of the facts would dictate harsher treatment.
More cynically, Republicans on the committee — wittingly or not — are also providing ammunition for QAnon by distorting Judge Jackson’s record of sentencing people convicted of possessing child pornography.
As Senator Marsha Blackburn said to Judge Jackson: “You also have a consistent pattern of giving child porn offenders lighter sentences. On average, you sentence child porn defendants to over five years below the minimum sentence recommended by the sentencing guidelines. And you have stated publicly that it is a mistake to assume that child pornography offenders are pedophiles.”
(It should be noted that a New York Times fact check found this claim to be a “distortion of the judge’s views,” with Blackburn omitting the fact that the sentencing commission that Judge Jackson was on “is bipartisan and issued the recommendations as a body.”)
Still the connection between this judge, nominated by a Democrat, and the idea of pedophilia is potent.
According to the Public Religion Research Institute, “the main threads of QAnon’s core theory are that a network of Satan-worshiping pedophiles control the government and media, and that a coming ‘storm’ will sweep them out of power,” and in a poll last month, one in four Republicans believe it.
It is perfectly fair for senators to ask probing questions of a nominee, particularly on issues where the answers might be at odds with their own beliefs or those of their constituencies. No nominee should expect a coronation in this process.
But what we are seeing is beyond the tough questioning nominees have come to expect. Jackson is being used in a political battle that has almost nothing to do with her or with the court.
She deserves better than this.