The Supreme Court confirmation hearings for Judge Ketanji Brown Jackson were not, by and large, about the Supreme Court.
They were not really even about Ketanji Brown Jackson.
Part of the reason why the hearings weren’t really about the court is, of course, the reality that Jackson’s vote will not change many rulings, given its 6-to-3 conservative majority. The senators used legal terms and even used a tiny number of the hundreds of cases Jackson decided over the past decade as a judge to launch one particular attack (criticized by both liberal and conservative observers as partisan demagoguery), but the hearings were about politics. Even questions about judicial philosophy quickly morphed into political sound bites about the right to an abortion, transgender people’s ability to participate in society and same-sex couples’ marriage rights.
Senate Republicans aren’t going to stop Judge Jackson from making history by becoming Justice Jackson, but they also had no qualms about using the first Black female Supreme Court nominee as a weapon: The Republicans will use the votes for Jackson as evidence that Democrats support all the activist-base-inspiring topics that a handful of Republican senators brought into the hearings this week.
Abortion. Critical race theory. Transgender athletes. Guantánamo detainees. Covid compassionate release prison policies. Same-sex couples’ marriages. And, as anyone who caught any significant part of the hearings knows: child pornography.
“Is critical race theory taught in schools? Is it taught in kindergarten through 12th?” Republican Sen. Ted Cruz of Texas asked, in an exchange that led into discussion of the books used at Georgetown Day School, on whose board Jackson sits.
“So you’ve done pro bono work on behalf of detainees at Guantánamo Bay,” Republican Sen. Tom Cotton of Arkansas said of a handful of cases Jackson said she was assigned at the law firm where she worked in the late 2000s. “Have you ever done pro bono work for the victims of terrorism?”
Republican Sen. Josh Hawley of Missouri, joined by several Republicans on the committee, launched a broadside throughout against Jackson’s sentencing in less than a dozen cases involving child pornography. This barrage continued through the week, despite the fact that academics and journalists, before the hearings had even begun, concluded that the line of attack was unfair because it lacked the context of other judges’ sentences for the same crimes or how the sentencing in these cases compared with that for other crimes.
For the most part, the Democrats let it happen. Yes, individual senators responded, carefully, to individual lines of attack by referencing Jackson’s support from law enforcement, how her decisions and sentences were within the mainstream and — as Democratic Sen. Mazie Hirono of Hawaii noted — how similar concerns weren’t levied against Trump nominees with similar records. And yet, there was little from the Democratic side of the aisle that even attempted to paint a full picture of Ketanji Brown Jackson — as a judge, as a lawyer or as a person — to offset the caricature being drawn by Cruz, Hawley, Cotton and Republican Sen. Marsha Blackburn of Tennessee.
From a political strategy perspective, the Democrats have the votes to bring forward Jackson’s nomination and confirm her to the Supreme Court if the Democratic caucus all votes in support. Jackson even received three Republican votes for her D.C. Circuit nomination just last year. Looking at this week from that political vantage point, the Democrats appear to have decided that they didn’t need to engage in a fight.
But, as New Jersey Sen. Cory Booker’s time on both Tuesday and Wednesday made clear, there was a different path available.
On Tuesday night, Booker — the only Black senator on the 22-member committee — described the “doubt that is being sown” about Jackson by some of the Republican committee members. He forcefully defended Jackson, highlighting the information discounting the attacks over her handling of child pornography possession cases, in particular. But then he went further, telling her, “I just want America to know that when it comes to my family’s safety, when it comes to Newark, New Jersey or my state — God, I trust you.” He then took Jackson, the committee and America on a journey through Jackson’s family, talking with her about her parents, her grandparents and her children.
“I want America to know a little bit more about your character right now,” he said.
“My parents grew up in a time in this country in which Black children and white children were not allowed to go to school together,” Jackson said, tearing up in telling the story. “They taught me perseverance. They taught me that anything is possible in this great country. And I think it came … from the sea change that we had [in] the 1960s, when Congress passed two civil rights acts and African Americans finally had the chance to become a part of the dream.
“I was born here [in Washington] on that hope and dream … with an African name that my parents gave me to demonstrate their pride in who they were, and their pride and hope in what I could be,” Jackson said.
The committee went on a break after Booker’s questioning, but it was, for Jackson, one of the few moments when she was able to truly engage with a senator about her place in our nation’s history. It was not about the Supreme Court’s docket, but it was about Jackson and, ultimately, a system that both prevented a day like this from happening earlier in history and allowed it to happen now.
After Tuesday’s marathon question-and-answer session, beginning at 9 a.m. and not closing down for the day until after 10 p.m., the through-line of the hearings seemed to be Republicans making noise — like Republican Sen. Lindsey Graham’s confrontation with Jackson on her Guantánamo work, in which the South Carolina senator concluded that “it wouldn’t bother [him] one bit” if the remaining detainees died in jail, before storming out of the room — to give themselves television sound bites to use after the confirmation is done and they can move on to the election cycle.
It wasn’t until Wednesday morning, when Republican Sen. Thom Tillis of North Carolina took his turn to question Jackson, that the arguments being made by the Republicans really came together.
“It seems as though you’re a very kind person,” Tillis said. And that worries him, he continued, because “there is at least a level of empathy that enters into your treatment of a defendant that some could view as maybe beyond what some of us would be comfortable with, with respect to administering justice.”
That’s it. Jackson treats all people like people, including criminal defendants, and that is enough to cause Tillis concern.
It’s not just him. This was the foundation behind so many of the Republican questions this week. At one point, Hawley quoted from a sentencing hearing transcript where Jackson, sentencing an 18-year-old in a child pornography case, noted to him and his family, “I feel terrible about the collateral consequences of this conviction.”
Hawley read a bit more from the transcript and then looked to Jackson: “I’m just trying to figure out, Judge, is he the victim here or are the victims the victims?”
Jackson’s history of acknowledging people’s humanity, as when she would note the long-term or even lifelong effects of her sentences, provided evidence for Hawley and other Republican senators this week that Jackson is an unfit judge.
Once viewed from that perspective, Tillis’ comment and its import bring a certain coherence to Republican senators’ questions. Almost all these many lines of questioning came down to fears — or exploitation of others’ perceived fears — that Jackson might, as a Supreme Court justice, be too kind. That she might actually work to understand the people coming before the court who have faced adversity or even hatred for who they are or what they have done. Including, yes, objectively bad — or even horrible — things.
To engage within our legal system — and the criminal legal system in particular — in the way Jackson has done is to be faced with the reality that acknowledging humanity is not something that the system does well.
In a 2015 Supreme Court case, now-retired Justice Anthony Kennedy quoted Fyodor Dostoevsky in an opinion questioning the use of solitary confinement. “The degree of civilization in a society can be judged by entering its prisons,” the Russian novelist wrote more than 150 years earlier. “There is truth to this in our own time,” Kennedy noted.
Jackson’s eyes appear to be open to that truth, an important viewpoint to be added to a Supreme Court whose majority appears — even this week — to be less tethered to precedent and more challenging to liberals than at any time in generations.
And that is what the hearings made clear about who Jackson is.
Thursday’s presentation from a panel of the American Bar Association’s Standing Committee on the Federal Judiciary reinforced that, as the panelists detailed their findings of how she is seen by her peers.
One of the ABA Standing Committee panelists, Jean Veta, summarized the views of those interviewed by the ABA committee — including prosecutors — who had firsthand experience working with Jackson: “Everybody gets a fair shake.”
In introducing the ABA committee’s findings, which came from 250 interviews and a review of Jackson’s writings, former judge Ann Claire Williams, who served on the U.S. Court of Appeals for the 7th Circuit, said, “The question we kept asking ourselves: ‘How does one human being do so much so extraordinarily well?’”
Although Jackson wasn’t in the room at the time, Democratic Sen. Richard Blumenthal of Connecticut provided an answer of sorts, saying, “She listens so intently and carefully to everybody who comes into her courtroom.”
“That seems to be the hallmark of her professional career,” Blumenthal added, “that she listens well to people and assesses fairly the grievances and intentions that they may make.”
While that appraisal won’t make the headlines out of the political theater of this week, that is the person whom President Joe Biden and the U.S. Senate will be sending to the Supreme Court. And in the years to come, the importance of having Ketanji Brown Jackson, with all her experiences, on the nation’s highest court will become more clear — and the “jackassery” of senators, as Republican Sen. Ben Sasse of Nebraska put it on Wednesday — will fade into history.
Thanks to Alicia Benjamin for copy editing this story.