The Senate Judiciary Committee moved Judge Ketanji Brown Jackson closer to the Supreme Court on Monday, when senators aired grievances over the confirmation process and then deadlocked along party lines in a vote on her nomination.
The Senate voted 53-47 on a procedural vote late Monday night to bring Jackson’s nomination to the Senate floor and a final confirmation vote later this week. Majority Leader Charles E. Schumer said Monday that confirming Jackson this week “remains the highest Senate priority so far.”
Jackson, who would become the first Black woman on the Supreme Court, is expected to be confirmed with the backing of the entire Democratic caucus and at least three Republicans. Sen. Susan Collins of Maine announced her support Wednesday, and Sens. Lisa Murkowski of Alaska and Mitt Romney of Utah announced their support Monday.
“This committee vote today is nothing less than making history, and I am proud to be part of it,” Judiciary Chair Richard J. Durbin, D-Ill., said ahead of Monday’s tied 11-11 committee vote.
Democrats spent the meeting defending Jackson in the face of Republican criticism over her past actions as a federal judge, with Texas Republican Sen. Ted Cruz predicting she would be the “most liberal justice ever” on the Supreme Court.
But members also aired concerns about member behavior during this confirmation process, and decades of tit-for-tat between the parties, stretching back to Democrats’ treatment of former Judge Robert Bork’s Supreme Court nomination in 1987.
Durbin praised Jackson’s “extraordinary legal career” and said some Republicans had made a “circus” of last week’s confirmation hearing. Jackson, currently an appeals court judge in Washington, D.C., previously worked as a federal trial judge and a public defender.
Republicans “promised not to turn this confirmation process into a circus, and most kept that promise. Some, however, did not,” Durbin said. “Instead, they repeatedly interrupted and badgered Judge Jackson, accused her of vile things in front of her parents, her husband and her children.”
Sen. Charles E. Grassley of Iowa, the top Republican on the panel, announced Monday that he would oppose Jackson’s confirmation. Grassley said Jackson had taken “radical” positions in cases that interpreted criminal justice reform law in a way that would undermine the separation of powers.
“We need confidence that judges will interpret the laws as they are written,” Grassley said. “Judge Jackson’s reinterpretation of laws I’ve helped write does not give me that confidence.”
Not this time
South Carolina Republican Sen. Lindsey Graham, who last year voted to confirm Jackson to a federal appeals court in Washington, said Monday that Jackson is a favorite of the “hard left” and criticized her decision interpreting a Trump administration immigration policy.
Graham also differentiated his vote for Jackson at the appellate level with his vote against Jackson’s Supreme Court nomination. “At the Supreme Court level you are making policy, not just being bound by it,” Graham said.
Raising his voice at times, Graham said Jackson had systematically set lower sentences for offenders in child pornography cases, ignoring enhanced sentences for images downloaded over the internet.
“Every time you hit a button to download an image of a child being abused you should go to jail longer. … I don’t think she has this right,” Graham said.
Democrats have argued that Republicans cherry-picked a few of Jackson’s sentences to attack her, and pointed out that her nomination has the backing of the American Bar Association and national police unions.
Romney, in announcing his support for Jackson on Monday, called her a person of honor. “While I do not expect to agree with every decision she may make on the Court, I believe that she more than meets the standard of excellence and integrity,” Romney said in a news release.
And Murkowski described Jackson's approach to cases is carefully considered and is generally well-reasoned. “The support she has received from law enforcement agencies around the country is significant and demonstrates the judge is one who brings balance to her decisions,” Murkowski said in a news release.
Republicans voted to change the threshold for advancing Supreme Court nominations, to a simple majority, to confirm Justice Neil M. Gorsuch in 2017.
Graham on Monday echoed prior criticism of Democrats’ approach to judicial nominations, and said that when Republicans are in control of the Senate, “we are going to talk about judges differently.” Jackson would not have received a hearing in a Republican-controlled Senate, Graham said.
New Jersey Democratic Sen. Cory Booker noted that the confirmation process has resembled the fictional “Festivus” holiday of “Seinfeld” fame, and its associated airing of grievances.
“I really do worry about what we are spiraling towards,” Booker said. “I worry about hearings like this, where the majority of people here on both sides, I think, were well within the zone, but I heard things that were just ridiculous, and painful and hurtful.”
Republicans, including Sen. Marsha Blackburn of Tennessee, defended their treatment of Jackson, pointing out they limited their questioning to her judicial record.
“Questions are not attacks, confirming a Supreme Court justice is one of our most important duties as senators of the United States,” Blackburn said.
Durbin argued some of the questions about Jackson’s record distorted her sentencing decisions. Durbin also pushed back on Republican requests for sealed records in the child pornography cases, which he said have never been sent to the committee in other cases and risked exposing underage victims.
“I took exception to several of my Republican friends,” Durbin said. “I never named names, and if they chose to take it personally, that’s their decision. If the shoe fits. I think they went too far.”
Durbin recessed the panel for hours to allow for the late arrival of California Democratic Sen. Alex Padilla because of an issue with his air travel. Durbin noted that in the past senators have entered into “pairing” agreements, where a member of one party would agree not to vote on a nominee because of another senator’s absence, but “those are rare these days.”