ANALYSIS — Race. Terrorist detainees and the still-raw wounds of 9/11. Sexual predators. Child pornography. Mandatory minimum sentences.
Did we mention race, still the hottest coal in the flammable tinderbox that is American politics?
Republican senators have a tough job this week as Supreme Court nominee Ketanji Brown Jackson faces questioning from the Judiciary Committee. In many ways, how the GOP side of the dais decides to treat the first Black woman ever nominated to the high court is the opening salvo of what promises to be a bruising midterm election cycle.
They must, all at once, be tough on a liberal federal appellate judge to placate and excite their base ahead of November’s midterm elections. But they also risk further alienating suburban white women and other swing voters who ditched them in 2020 to give Joe Biden the White House and Democrats control of both chambers of Congress.
Sen. Ben Sasse, R-Neb., a member of the Judiciary Committee, on Sunday offered some advice to his fellow Republicans: “I want us to vet Judge Jackson’s judicial philosophy.”
But he also indirectly shined a light on the risks of GOP senators going too far in the current cultural environment against a female nominee who also is Black: “I don’t want us to attack her as a human.”
Senate Minority Leader Mitch McConnell last week told conservative radio host Hugh Hewitt that Jackson would be “treated respectfully” by his Republican colleagues.
Sasse and McConnell did not exactly set a high bar.
“Marsha Blackburn is the only woman senator on the committee for Republicans. And all the Republicans on the committee are white,” Debbie Walsh, director of the Center for American Women and Politics at Rutgers University, told CQ Roll Call on Monday. “So, having a group of all white and mostly male senators grilling the first Black woman ever nominated to the court feels like a risky proposition for them.”
“The significance of this nomination is huge, particularly for Black women. For them, it’s just so long overdue,” she added. “If she gets attacked in ways that feel personal or beyond the pale, or the [Republican] senators bring up things that are just inappropriate, they risk turning off more independent, suburban voters — and energizing a large part of the Democratic base ahead of the midterm elections: Black women.”
The Senate Banking Committee recently voted on nominees to the Federal Reserve Board, advancing Jerome Powell for a second term as chair, Fed Governor Lael Brainard to be vice chair and Philip Jefferson to join the Fed board. But the committee deadlocked, 12-12, on Lisa Cook, who if confirmed would be first Black woman to join the Fed board. If Democrats want to bring her nomination to the floor, they can do so with a petition to discharge it from committee. Banking Committee ranking member Patrick J. Toomey, R-Pa., had criticized Cook at her February confirmation hearing as inexperienced in macroeconomic policy and for being not tough enough on inflation.
Cook has said she agrees with the decisions the Fed, of which Powell and Brainerd are a part, to combat inflation. She is a professor of economics and international relations at Michigan State University and has a Ph.D. in economics from the University of California, Berkeley, with a specialization in macroeconomics and international economics.
That came after the nomination of Shalanda Young to step up from deputy director of the White House’s Office of Management and Budget to the top spot lingered in the Senate for months.
Two panels with jurisdiction over the nomination voted on the same day, Feb. 9, to send Young’s name to the floor. But a majority of Budget Committee and Homeland Security and Governmental Affairs Committee Republicans opposed her nomination. She was confirmed 61-36 by the full Senate, with 14 Republicans joining all 47 Democratic caucus members voting “aye.”
Here’s how Jackson described her approach on Monday: “I decide cases from a neutral posture. I evaluate the facts, and I interpret and apply the law to the facts of the case before me without fear or favor, consistent with my judicial oath.”
Little has changed since McConnell predicted last week during the radio interview that it is “highly likely” Jackson will be confirmed and join the high court. That means what happens during the remainder of her confirmation hearing will be mostly political theater as the 2022 midterm election cycle heats up.
And what issue in the United States is more political than race?
“The Brown Jackson nomination is a serious threat to the Republican Party. Opposition to her elevation accentuates the GOP’s hostility towards people of color, which rose to new levels during Donald Trump’s presidency,” said Brad Bannon, a Democratic strategist. “GOP rejection of the nominee would demonstrate that the party is deeply committed only to its base of white voters, whose contribution to the voting pool shrinks with every election.”
“You’ll most likely see two groups of Republicans this week. The first, and this probably includes Leader McConnell and Ben Sasse, who are focused on winning back the Senate. The other is thinking about running for president, and I’m thinking about Cruz and Hawley, who don’t follow, usually, what their leadership or the mainstream of the party might do. They’re the two wild cards — they’ll see it as a chance to get a national stage and position themselves,” Walsh said.
Hawley has already made waves about Jackson, questioning whether sentences she was involved in handing down as part of the U.S. Sentencing Commission — including ones involving child pornography — were too light. “Judge Jackson has a pattern of letting child porn offenders off the hook for their appalling crimes, both as a judge and as a policymaker,” he tweeted March 16. “She’s been advocating for it since law school. This goes beyond ‘soft on crime.’ I’m concerned that this a record that endangers our children.”
But Walsh suggested that using child porn cases to make a broader argument that the nominee is, as Hawley put it, “soft on crime,” could backfire.
“When I read Sen. Hawley’s tweets, it felt like he’s taken a handful of decisions out of context,” she said. “That’s the part that, I think, people will take umbrage with: twisting her record in ways that distort her record.”
For Hawley, distorting or twisting would almost certainly mean prime slots on Fox News and other conservative media outlets — which is never bad for a potential 2024 White House candidate. Senate Democrats offered a reminder of the spectacle going on inside that Hart Senate Office Building hearing room this week.
“Judge Ketanji Brown Jackson’s Supreme Court nomination could have been single-handedly tanked by Mitch McConnell if Republicans had just ONE MORE seat in the Senate,” the Democratic Senatorial Campaign Committee tweeted on Thursday. “It’s a powerful reminder of how important flipping the Senate was and how important defending it is.”
Bannon echoed that sentiment.
“Dismissal of her ascension to the Supreme Court could also motivate Black voters to vote in the midterms,” he said, “which could lessen Republican opportunities to take control of Congress next year.”
There’s another wild card: Donald Trump. The former president has not weighed in with any depth on Jackson’s nomination. He did, however, offer some counter-programming to the hearing’s first day with a telephone interview on Fox News.
Winning back the Senate and expanding the conservative tilt on the high court was not what Trump said Republicans should focus on this year or in 2024. “I think if we don’t put out all of the crooked things, and we know what they are,” he said of the 2020 presidential election he fairly lost to Biden, “you won’t win in ’22 and you won’t win in ’24.”