Ketanji Brown Jackson SCOTUS Hearings Escalated the Court Wars

  • Democrats and Republicans have long battled over the Supreme Court’s nominating process.
  • However, as Ketanji Brown Jackson’s hearings have demonstrated, confirmations have become heavily polarized in recent years.
  • The prospect of court nominees being routinely blocked to prevent a president would harm the judiciary.

In late February, President Joe Biden ushered in a prolific moment in US history; for the first time in US history, a black woman would be nominated for the Supreme Court.

Ketanji Brown Jackson – a former public defender and judge on the influential District of Columbia Court of Appeals – had long been considered a leading candidate in the case of retirement or a seat in the upper court. She held the credentials of many of the incumbent judges, including an Ivy League law degree and a federal judgeship — and her groundbreaking appointment energized Democrats during a time when some of the party’s most ambitious legislative items faltered.

As Democrats sought a bipartisan vote for Jackson’s nomination, many Republicans — still rewiring the confirmation procedures of previous Conservative candidates — made last month’s hearings a proxy for the country’s cultural failings.

Throughout scrutiny of Jackson’s record, race, criminal justice, and gender dynamics have been used as a club by many Judiciary Committee Republicans as they sought to unbalance Jackson, despite his largely positive reception from the American public.

Republican Senator Lindsey Graham — who had previously voted to confirm Sonia Sotomayor and Elena Kagan to the Supreme Court despite being nominated by Democratic President Barack Obama — supported Jackson’s nomination to the District of Columbia appeals court last year, but he was in no mood to return his elevation to the high court.

“The Supreme Court is different from the circuit court,” the South Carolina lawmaker said in explaining her vote against Jackson on the Judiciary Committee panel earlier this month, adding that she was an “activist to the core.”

Enter the newest stage of the country’s escalating court wars.

Robert Bork

Robert Bork testifies during his Supreme Court confirmation hearing on September 18, 1987.

CNP/Getty Images

The ‘Bork’ effect

When then-President Ronald Reagan nominated Robert Bork to the Supreme Court in July 1987, the choice of the former attorney general and judge on the Circuit Court of Appeals for the District of Columbia was praised by conservatives.

However, the appointment immediately hit turmoil.

The same day as Reagan, then senator, was announced. Ted Kennedy of Massachusetts went to the Senate floor to criticize Bork’s judicial philosophy. The appeals court judge was adept at “strict constructionism,” which limits the interpretation of constitutional language to that explicitly stated by the framers.

“Robert Bork’s America,” the senator said in a speech, “is a land where women would be forced into clandestine abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in at midnight, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the government.”

Kennedy’s withering accusation was rooted in Bork’s opposition to the Civil Rights Act of 1964 – which prohibited racial discrimination in public accommodations – and spread to his skepticism of gender-discriminatory laws.

The hearings were arduous and Bork was eventually rejected by the Senate floor in a vote of 58 to 42. Six Republicans joined 52 Democrats – including then Judiciary Committee chairman Biden – in opposing the nomination, in what was a poignant setback for the conservatives. And they never forgot.

Carl Tobias, a professor at the University of Richmond School of Law, said Bork’s proceedings continue to shape how Republicans approach higher court vacancies.

“This has a huge impact on the Republican side. They think this was it — that’s when they would have a Conservative majority on the Supreme Court,” he told Insider. “And they were right. That would have made a big difference. I think the Democrats played politics well, even if it wasn’t fair to Bork. But Bork got involved too, to some extent. He misinterpreted what was going on. He just didn’t understand the whole public policy of it all.”

Merrick Garland

Then-President Barack Obama shakes hands with then-Supreme Court nominee Merrick Garland alongside then-Vice President Joe Biden during the nomination announcement in the Rose Garden of the White House on March 16, 2016. Senate Republicans stand refused to consider a hearing for Garland and he was never elevated to the Supreme Court.

SAUL LOEB/AFP via Getty Images

a beer storm

Until recently, Supreme Court nominees traditionally received unequal confirmation votes from the Senate.

In 1986, Antonin Scalia was confirmed 98-0; Anthony Kennedy received 97 votes to 0 in 1988; David Souter passed 90-9 in 1990; Ruth Bader Ginsburg was confirmed 96-3 in 1993; and Stephen Breyer passed 87-9 in 1994.

After conservative jurist Clarence Thomas was accused of sexual harassment by law professor Anita Hill during her Supreme Court confirmation hearings in 1991, he refuted the allegations and said the process had turned into a “high-tech lynching”. He was narrowly confirmed, 52-48.

In more recent decades, John Roberts was confirmed 78-22 as chief justice in 2005, while Samuel Alito was approved 58-42 as associate judge in 2006. In 2009, Sonia Sotomayor was confirmed 68-31, while Elena Kagan was approved 63 -37 the following year.

In November 2013, Senate Democrats overturned the 60-vote obstruction limit that previously applied to lower court nominees and presidential cabinet nominees, keeping it in effect for Supreme Court nominees. Republicans, who barred the confirmation of several Obama appeals court nominees, found themselves unable to block most Democratic nominees after the new rules were implemented.

However, after the GOP regained control of the Senate in January 2015 and after Scalia’s death in February 2016 during the final year of Obama’s presidency, then-Senate Majority Leader Mitch McConnell of Kentucky, drastically reduced court confirmations.

Now Attorney General Merrick Garland, who at the time was Obama’s choice to replace Scalia, was denied a Senate hearing and a vote, with Republicans vowing to leave the court seat open for the next president. Democrats have been furious at Garland’s treatment ever since.

As soon as Donald Trump entered the White House, the Republican-controlled Senate confirmed Neil Gorsuch (54-45), Brett Kavanaugh (50-48) and Amy Coney Barrett (52-48) to court over the protests by the majority of Democrats.

Kavanaugh’s tense confirmation hearings in 2018 featured testimony from Christine Blasey Ford, a research psychologist who had accused the then-appeals court judge of sexual assault decades earlier — in what Graham at the time called “wholesale character murder.” The judge denied the charges and was confirmed with near unanimous support from the Republican Party and only one Democratic vote, which came from Senator Joe Manchin of West Virginia.

Barrett — who was named to replace Ginsburg following the death of liberal justice just weeks before the 2020 presidential election — did not receive any Democratic votes, with lawmakers outraged at the quick timeline McConnell established when he confirmed it in court.

Lindsey Graham

Senator Lindsey Graham sharply criticized President Biden’s nomination of Ketanji Brown Jackson to the Supreme Court.

Anna Moneymaker/Getty Images

‘They clearly raised her right’

Since Biden took office last year, Democrats have confirmed federal judges in a quick clip, trying to make up for their past mistakes in shaping the judiciary. Diversity has been a top priority; about 67% of federal court nominees confirmed by the president are non-white — with 31% of all confirmed nominees being black, based on data from the Federal Judicial Center.

For Democrats, Jackson’s nomination should cap Biden’s efforts to elevate the nation’s first black female jurist to the nation’s highest court, without the sharp polarization of previous hearings. This did not happened.

Graham used her interrogation time to break down Jackson’s record into sentencing offenders for child pornography, which many Republicans said was too lenient because she imposed sentences lighter than federal guidelines in several cases. Fact-checkers and legal experts have dismissed the allegations, saying it lacks context and key data showing that Jackson’s conduct was within the mainstream and that the guidelines were out of date.

Republican Senator Ted Cruz of Texas spurred Jackson on critical race theory, an academic discipline that examines how the legacy of racism continues to reverberate through laws and policies that exist today. He then picked up the book “Anti-Racist Baby”, written by anti-racist author and scholar Ibram X. Kendi, to ask her if she thought babies were racist. With a sigh that was uncharacteristic of Jackson during the hearings, she said that no child “should feel racist or unappreciated, or less than that.”

Just before the full Jackson Judiciary Committee vote, Graham warned Democrats that she would not have received a hearing if Republicans controlled the Senate, citing the need for a more “moderate” candidate. And McConnell remains silent on whether he would consider a future candidate for Biden’s high court in a GOP-controlled Senate.

“I just wonder what it will take to stop the downward spiral,” Tobias told Insider. “I don’t know what it is. I think the prediction – and I think it’s right – is that if something isn’t done, it means the only time you can confirm a Supreme Court nominee is when the person in the White House has a majority in the Senate of the same party. All of this is bad for the president, bad for the Senate and bad for the courts in terms of public perception – as far as the public cares.”

In the end, Jackson was confirmed in a vote of 53 to 47, with the support of all 50 Senate Democrats and three Republicans – Senator Susan Collins of Maine, Lisa Murkowski of Alaska and Mitt Romney of Utah. She was not a highly controversial candidate, yet three GOP votes were seen as a step forward in the current political environment.

Many Republicans – including retired Senator Roy Blunt of Missouri – praised Jackson’s legal acumen but said they could not yet support his nomination, citing his “judicial philosophy” or inability to define what his philosophy would look like.

Senator Thom Tillis of North Carolina, who was cordial in his questioning of Jackson during the Judiciary Committee hearings, commented that he was “impressed” by her knowledge and character.

“I had an opportunity during one of the breaks to go to her parents, and I told them that they clearly upheld her right,” he said ahead of the full committee vote earlier this month. “They must be very proud.”

He then proceeded to vote against his confirmation.

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