2 years ago
The confirmation hearing of Judge Ketanji Brown Jackson could have been a cause for celebration, a moment when the long arc of America bending toward justice meant that the most qualified candidate to be nominated to the Supreme Court in decades just happened to be a Black woman — and that fact was normalized as unexceptional.
Instead, while there were moments of solemnity and respectful inquiry into the merits of Jackson’s record, the hearings were marred by other moments of stupid, operatic indecency in which character assassination supplanted good faith inquiry. Was this par for the course in a toxically divided nation in which dog-whistling and lying to whip up hysteria for votes are now a regular feature of GOP politics? Or was a Black woman targeted for racism, sexism and disrespect?
Republicans had an opportunity with Jackson’s nomination to do the right thing. The votes for her confirmation are all-but assured. They could have used this as an opportunity to repair division in a time of war, compete for Black voters and, frankly, signal that the arc-bending party of Lincoln still exists.
But Republicans didn’t take that opportunity. Instead, the worst of Jackson’s critics tried to turn her unique strengths and qualifications into deficits. They smeared her as “soft on crime” to counter the positive that she would be the first justice in American history to bring the expertise of a former public defender. They wrongly cast her as a coddler of child pornography offenders, undermining her bipartisan, consensus-building experience as Vice Chair of the U.S. Sentencing Commission.
Why would Republicans do this when Jackson’s confirmation would not upset the current 6-3 conservative-leaning tenor of the Court? My guess is that dividing and conquering to win elections at any cost have become muscle memory for far too many members of Congress. They don’t remember or don’t care to follow the bipartisan norms of civility that used to result in highly qualified candidates like conservative Antonin Scalia (98-0) or liberal Ruth Bader Ginsburg (96-3) being handily confirmed.
Despite the culture-warring tendencies of some, fair-minded senators, particularly those who are Republican, should vote to confirm Judge Jackson on the merits. Here’s why.
First, Jackson is not only supremely qualified but supremely impressive under fire. She of natural hair and African name was dignified and gracious under pressure and showed magnificent judicial acumen and temperament even as her critics did not.
Second, her personal story is a testament to what America can and should be: an optimistic nation of opportunity for all. She is a child of public-school teachers who attended segregated public schools and historically Black colleges and strived professionally. A generation later, Jackson attended integrated public schools, Harvard University and later Harvard Law School, graduating from both with honors. She served as a supervising editor on the Harvard Law Review. As a former member of that august journal, I can attest to what that means; in my day, the “S.E.” was the intellectual superior who spent countless hours reviewing and honing every article published in the Review. At Harvard, she met and eventually married Patrick G. Jackson — an interracial marriage made universally possible by a Supreme Court decision, Loving v. Virginia. This match of a descendant of enslaved persons with a descendant of a delegate to the Continental Congress is just not an enduring partnership but the culmination of decades of social progress in which loving across lines of race has become normal.
Third, she’s a judicial heavyweight. Like several past nominees she serves as a U.S. Court of Appeals judge on the D.C. Circuit, considered by many the most consequential appellate court in the country after the Supreme Court. But she also has the combined experience of having served as a trial judge on a U.S. District Court, for a total time of prior judicial experience, 8.9 years, that exceeds that of four sitting justices combined (Clarence Thomas, John Roberts, Elena Kagan and Amy Coney Barrett). The only other justice with experience as a trial judge is Justice Sonia Sotomayor. Jackson will also be the first former public defender to serve on the Court. The last justice with any real experience representing indigent people accused of crimes was Thurgood Marshall. She would also be the only justice to have served on the U.S. Sentencing Commission. As vice chair of the commission, she was part of the bipartisan consensus that lessened overly harsh and racially disparate sentences wrought by the war on drugs.
Fourth, in contrast to the attacks on her, Jackson described a methodology toward judging that might have surprised her liberal supporters with its moderation, even conservatism. She declared that her methodology was marked by acute awareness of the limits on her authority, informed by her years as a trial judge. Her three-pronged approach was designed so that she would “stay in my lane,” she said, to leave policymaking to Congress. In answering questions posed by Republican Sen. Chuck Grassley, she said, “I do not believe that there is a living constitution that is infused with the policy views of the day.”
She uses the methods of conservative “originalists” and “textualists” paying close attention to the “original public meaning” of texts. But she refuses to be labelled or ideological about her methods, which is much closer to the actual practice of current justices. Perhaps Jackson’s great care and transparency in adjudicating explains why she has been endorsed by a wide array of voices, including the Fraternal Order of Police and conservative retired Judges Thomas Griffith, J. Michael Luttig and David Levi. She is impartial and utterly in the mainstream of American jurisprudence. With nearly 600 trial court opinions she was reversed or vacated only 14 times, well below judicial averages, according to the Alliance for Justice.
And yet this brilliant, even-handed jurist who has ruled for and against presidents and prosecutors was cast as a soft-on-crime, child-predator-enabling, critical-race-theory believing, left-wing activist by the GOP’s most arch political performers.
This is dangerous character assassination. In particular, the child-predator-enabler mythology has been thoroughly debunked, including in the conservative National Review. Most telling, Republicans have voted to confirm conservative judicial nominees that engaged in the same widespread judicial practice of departing downward from child pornography sentencing guidelines that Jackson was excoriated for.
Again, these hearings provided Republicans an opportunity to confirm a candidate that extolls many of the values and practices that they claim to cherish as well as an opportunity to exercise the color-blindness they claim. Instead, they offered the disturbing optics of mainly southern, white men lecturing, interrupting and sometimes yelling at a gracious, poised Black woman.
If no Republicans vote to confirm this eminently qualified Black female to the highest Court, it will send a searing message about what the GOP has become.
English (US)