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Bad blood, hypocrisy and hard feelings: The Supreme Court confirmation process

Political Theater, Episode 242

Judge Ketanji Brown Jackson, President Joe Biden’’s nominee for Associate Justice to the Supreme Court, is seen in the Capitol in between meetings on March 16, 2022.
Judge Ketanji Brown Jackson, President Joe Biden’’s nominee for Associate Justice to the Supreme Court, is seen in the Capitol in between meetings on March 16, 2022. (Tom Williams/CQ Roll Call)

The stakes for a seat on the Supreme Court have always been high. But since Senate Republicans blocked Merrick B. Garland’s nomination in 2016, the high court confirmation process has been defined by vitriol, charges of hypocrisy and hard feelings. Judge Ketanji Brown Jackson, President Joe Biden’s pick to replace the retiring Stephen G. Breyer, is finding this out.

When Garland, now the attorney general, was snubbed by then-Senate Majority Leader Mitch McConnell after being tapped to replace the late Antonin Scalia, it set off a tussle between the parties that flares every time there is a vacancy.

When Donald Trump nominated Neil M. Gorsuch in 2017 for the seat left vacant by Scalia, Democrats fumed at what they said was a stolen seat that should have gone to Barack Obama’s nominee, Garland. That prompted a Democratic filibuster, which prompted McConnell and the majority Republicans to nuke the 60-vote threshold for Supreme Court nominees to clear the procedural roadblock.

When Justice Anthony Kennedy retired in 2018, Trump was ready with Brett M. Kavanaugh. Tears and beers followed, as accusations of Kavanaugh sexually assaulting Christine Blasey Ford when they were in high school surfaced. Protesters filled Senate office buildings. Yearbooks were scoured. Ford endured death threats. It was ugly.

When Ruth Bader Ginsburg died in September 2020, Trump had his chance to replace a Democratic-nominated justice with his own, Amy Coney Barrett. Despite McConnell stating that Garland didn’t get a Senate hearing because it was too close to a presidential election (Scalia died on Feb. 13, 2016 and Obama nominated Garland on March 16), he had no problem with a Barrett nomination that came on Sept. 26, 2020 and a confirmation vote on Oct. 26 — after people had already started voting in that year’s presidential election.

When Breyer announced he was retiring on Jan. 26, Biden got his shot to keep his campaign promise to nominate the first Black woman. The 6-3 GOP nominees-Dem nominees divide on the court would not change. The Senate confirmed Jackson last year to the U.S. Court of Appeals for the D.C. Circuit, and she previously served as a district court judge and as a member of the U.S. Sentencing Commission. So, the Senate knows her. Republicans, like former Speaker Paul D. Ryan and former Judge Michael Luttig, vouched for her. The GOP could take the win and contribute to the first Black woman’s confirmation to the Supreme Court.

But, you know, politics.

Republican Sen. Josh Hawley of Missouri broke the ice on Wednesday when he posted a Twitter thread saying Jackson was soft on sexual predators who went after kids. Democrats in Congress said the charges were ridiculous and pointed to Jackson’s support from conservatives, police organizations and survivors of abuse. The White House accused Hawley of being soft on Roy Moore, the Alabama Senate candidate in 2017 who was accused of cruising teenage girls. Is it ugly yet?

Jackson will likely be confirmed, because even in a 50-50 Senate, Democrats can confirm her with no GOP votes. Democrats might even prefer that, because they can hit the campaign trail and accuse Republicans of standing athwart history.

But it will probably get uglier.

We’re pretty far gone from the times Ginsburg could get confirmed 96-3 in 1993, or Scalia could be elevated on a 98-0 vote in 1986.

CQ Roll Call Senior Writer Todd Ruger and I discuss it all on this week’s episode of Political Theater.

Show Notes:

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