Senate Judiciary Chair Richard J. Durbin opened the confirmation hearing for Ketanji Brown Jackson to the Supreme Court expressing his hopes that the Republicans would be respectful over the next three days, but they were more concerned about complaining about how Democrats treated GOP nominees over the past three years.
“I … ask the members of this committee as we begin this landmark confirmation process to consider how history will judge each senator as we face our constitutional responsibility to advise and consent,” the Illinois Democrat said.
Republicans groused about the confirmation process for President Donald Trump’s picks, especially attacks on Justice Brett Kavanaugh’s character after he was accused of sexually assaulting Christine Blasey Ford when both were in high school.
“Judge Jackson, I can assure you that your hearing will feature none of that disgraceful behavior,” Sen. Ted Cruz of Texas said. “No one is going to inquire into your teenage dating habits. Nobody is going to ask you with mock severity, ‘Do you like beer?’”
Other Republicans joined Cruz in lamenting how Democrats treated GOP picks to the federal bench in the past, including Janice Rogers Brown and Miguel Estrada, two of George W. Bush nominees who are Black and Hispanic, respectively. Democrats filibustered Estrada’s nomination and held up Brown’s appointment to the Court of Appeals for the D.C. Circuit for two years.
The GOP also groused about the treatment of Trump’s other Supreme Court picks, Neil Gorsuch and Amy Coney Barrett.
On Monday, Sen. Marsha Blackburn opened her remarks by contrasting their hearings, and the contentious hearing Justice Clarence Thomas received, with how her party would treat Jackson. “As you have heard repeatedly, this is going to be a fair and very thorough and very respectful hearing,” the Tennessee Republican said.
A few minutes later, Blackburn insinuated Jackson’s professed lack of an explicit judicial philosophy left her “legally adrift” and biased. “You once wrote that every judge has ‘personal hidden agendas’ that influence how they decide cases,” Blackburn said. “So, I can only wonder what’s your hidden agenda. Is it to let violent criminals, cop killers and child predators back to the streets? Is it to restrict parental rights and expand the government’s reach into our schools and our private family decisions?”
Despite casting themselves as paragons of procedural virtue on Monday, Republicans have, of course, also used ad hominem attacks and bureaucratic tricks to disrupt Democratic nominations.
The GOP famously refused to give Barack Obama’s nominee to the Supreme Court, Merrick Garland, so much as a hearing in 2016. At the time, Senate Majority Leader Mitch McConnell cited a “rule” of refusing to seat a justice in a presidential election year. Four years later, McConnell pushed through Barrett’s nomination less than two months before the 2020 election.
Those moves gave conservatives on the court a 6-3 majority, leading observers to predict successful challenges to long-settled Supreme Court precedents like Roe v. Wade and Chevron deference.
Last year, Biden’s nominee to head a federal bank regulator, Saule Omarova, faced a line of questioning from Republican Sen. John Kennedy of Louisiana that insinuated that the Kazakhstan-born Cornell University professor shared the same Communist philosophy that left her grandmother orphaned under Joseph Stalin.
“I don’t know whether to call you ‘professor’ or ‘comrade,’” Kennedy said at her hearing. Kennedy demanded she provide a resignation letter from a Soviet youth group she was forced to join as a girl.
Omarova’s nomination was withdrawn in December.
Earlier this year, Sarah Bloom Raskin’s nomination to the Federal Reserve was derailed after Republicans on the Senate Banking Committee simply refused to show up for the vote, denying Democrats a quorum.
Even as Grassley, Cruz and others promised a smear-free hearing, Jackson had already been accused by his colleague, Missouri Republican Sen. Josh Hawley, of going easy on child pornography offenders as a judge. Hawley repeated those allegations on Monday, listing seven cases where Judge Jackson imposed a shorter sentence than federal prosecutors requested.
Hawley framed his statement as a question about differing judicial philosophy.
“I’m not interested in trapping Judge Jackson, I’m not interested in trying to play gotcha. I’m interested in her answers,” Hawley said. “I found in our time together she was enormously thoughtful, enormously accomplished. I suspect she has a coherent view and explanation and set of thinking — way of thinking — about this that I look forward to hearing.”
Democrats focused more on the historic nature of Jackson’s nomination. If confirmed, she would be the first Black woman to serve on the Supreme Court. Jackson would also be the first justice with considerable criminal defense background since Thurgood Marshall, the first Black man on the court.
New Jersey Democratic Sen. Cory Booker praised the Biden administration for nominating a diverse slate of judicial candidates. “They herald the truth of who we are as a country: an inclusive multicultural nation that shows the world the promise of a true democracy,” he said. “Today, we should rejoice because President Biden nominated someone that we’ve heard to be the 116th associate justice of the Supreme Court, who is extraordinarily talented, and also happens to be a black woman — something we haven’t seen before.”
Through it all, Jackson sat with her hands folded in front of her, a smile glued on her face.
Sen. Richard Blumenthal, a Connecticut Democrat, acknowledged the unusual situation Jackson faced, listening quietly as senator after senator gave speeches ostensibly about her but obviously more focused on playing for the cameras.
“You’re obviously a good listener, because you’re doing a lot of listening here today,” Blumenthal said. “As you’ve seen, we’re likely to hear more than a few straw men today, worn talking points, imagined grievances, but this hearing really should be about you.”