WASHINGTON — By historical standards, the confirmation of Ketanji Brown Jackson should have been a layup: a liberal Supreme Court pick who is unquestionably qualified, recently endorsed by the Senate to serve on a powerful circuit court and appointed under a all-Democratic government to replace an aging Liberal after a long-awaited retirement.
Yet the process went wrong. Republicans have sought to tarnish his image with graphic innuendo about his conviction in child pornography cases. They harassed her on political issues like critical race theory. Then they spoke out against her en masse, including Senator Richard Burr, RN.C., even as he called her “undoubtedly highly qualified, knowledgeable and experienced.”
Jackson is on track to be confirmed with a thin veneer of bipartisan support: Senator Susan Collins of Maine is the only Republican to endorse her so far. The one who voted to confirm it last year at the United States Court of Appeals for the District of Columbia Circuit, Senator Lindsey Graham of South Carolina, rocked. She appears to be heading for a deadlock in committee, likely forcing Democrats to jump through an unusual hoop to bring her to the floor.
But the likelihood of limited success for Jackson masks the ongoing disintegration of the Supreme Court confirmation process, which some senators fear is irreparably broken. While blame games abound, consensus solutions to fix it are lacking.
The GOP tactics reveal a party that remains hungry for confrontation despite five years of using unprecedented tactics to craft the most conservative Supreme Court in a century — a 6-3 majority willing to reshape US law. The senators justify this in part by citing Democrats’ treatment of conservative justices for decades. Many also insist that any candidate embrace “originalism,” a popular right-wing framework of narrow constitutional interpretation.
Garland and ‘the point of no return’
Democrats say Senate Republican Leader Mitch McConnell broke the process in 2016 when he eliminated a longstanding presumption that a president’s nominee for a vacancy gets a vote. For 10 months, he blocked President Barack Obama’s choice, Merrick Garland, saying the presidential election was too close. Then in 2020, he rushed through Judge Amy Coney Barrett the week before the election following the death of liberal icon Ruth Bader Ginsburg, pulling the court to the right.
“The Merrick Garland debacle was the point of no return. Once McConnell stole that seat from Obama, I didn’t think there was a way to depoliticize that process,” said Sen. Chris Murphy, D-Conn. “Something fundamentally broke here when Senator McConnell chose not to even grant Merrick Garland a hearing.”
Murphy said the logical consequence of McConnell’s decision is that a future Supreme Court pick may never be confirmed under a cross-party President and Senate, which was the basis of the Republican’s blockade of Kentucky. .
“I shouted that as loud as I could when McConnell made that decision. I said the consequence of McConnell’s decision would be a possible constitutional crisis,” Murphy said. “And I think Republicans have made it clear that if they are in control, they will never confirm the choice of a Democrat for the Supreme Court.
“My fear is that we haven’t gotten close to the bottom,” he said.
McConnell has not ruled out further escalation, declining last year to say whether he would allow Biden to fill a potential Supreme Court vacancy with a traditional liberal in 2023.
Republicans carry a different set of scars and trauma, which were on display during Jackson’s hearings. They remain bitter about Robert Bork, Ronald Reagan’s nominee who was excoriated as extreme and unfit before being voted out 42-58 by a bipartisan majority in 1987.
McConnell said it all started when Democrats “murdered” Bork. Today, he said, the Senate is in “total affirmation mode” and does not want to defer to the president of the High Court.
“Regardless of who has a majority in the Senate, for the foreseeable future the confirmation process will be viewed by senators as a co-responsibility,” he said at a Punchbowl News event on Thursday. “In other words, the president can initiate, but we are full partners in the process.”
Trauma Bork, Thomas and GOP
Other Republicans cited the tense battles against Justices Brett Kavanaugh and Clarence Thomas – both accused of sexual misconduct by women who aired their claims publicly before the Senate voted to put them on the high court. Sen. Ted Cruz, R-Texas, was unmoved by Democrats’ concerns that a divided government will never produce another confirmation.
“Well, these Democrats should re-evaluate their disgraceful behavior with Judge Brett Kavanaugh,” he said, calling it a “political circus.”
Democrats argue those hearings were ugly not because the two men were conservative, but because they were accused of sexual misconduct. Republicans insist they have been smeared, and they cite that antagonism as the basis for their own escalation in court wars.
“It really goes back to when I was here as a staff member – you had Bork and then shortly after you had Thomas and those became fiercely ideological battlegrounds,” said John Thune, RS.D. “Supreme Court nominations have really become an arena for arguing the big differences that people have on ideology in this country and I think that’s changed the landscape significantly.”
The use of the filibuster on judicial nominees escalated until 2013, when Democrats eliminated the 60-vote rule to confirm lower court judges. In 2017, Republicans bombarded him for Supreme Court nominations to confirm Justice Neil Gorsuch.
“We may have passed the point of no return when supermajority was removed and simple majority became the requirement to get judges through,” Thune said.
“Serious injuries to the court”
Sen. Tim Kaine, D-Va., said Republicans’ complaints about their nominees are incomparable to the refusal to allow a hearing for Obama’s nominee in 2016 and their choice in 2020.
“I think these two actions were serious injuries for the court and for this body,” he said. “But I don’t think it’s just fixed with a process change. Because it’s not like you can undo those two massive errors.”
For some progressives, the solution is for the Democratic Congress to add four seats to “rebalance” the court and fill it with liberal justices in retaliation for Republican tactics. But that effort is going nowhere fast in Congress: the Judiciary Act has only three Senate sponsors and 51 House supporters. And Republicans like McConnell have seized on it as a political cudgel to use against Democrats, some of whom oppose the bill and fear it could spark further escalation.
Sen. Dick Durbin, D-Ill., chairman of the Judiciary Committee, said the days of Ginsburg being confirmed 96-3 and conservative icon Justice Antonin Scalia being confirmed 98-0 are long gone.
“It was just a different day,” he said. “The tribunal has become such a political issue.”
John Breaux, a former senator from Louisiana, said the legal battleground reflects growing partisan polarization in Congress, which has also wiped out conservative Democrats like him. He mourned the days of presidential deference to judges.
“The dividing line between Republicans and senators was not a wall,” he said. “It was just an alley.”