In 1994, on the afternoon that the U.S. Senate confirmed Justice Stephen Breyer, then-Senator Mark Hatfield, a Republican, took to the Senate floor. Before detailing why he would vote for Breyer, Hatfield reminded his colleagues that the Senate’s advise-and-consent role was “something that we do not take lightly because this is the only opportunity for the people of this nation to express whether or not they deem a nominee qualified to sit on the highest court in the land.”
Indeed, the Senate Judiciary Committee has opened Supreme Court confirmation hearings to the public regularly since 1955 and has allowed gavel-to-gavel television coverage of those hearings since Sandra Day O’Connor’s nomination in 1981 for exactly that purpose: to allow Americans to evaluate the nominee and convey their views to their representatives.
And perhaps naively, I had thought all stakeholders — lawmakers of both parties, advocacy groups, the executive branch, and voters like me — were in general agreement: We subject Supreme Court nominees to the unique ordeal of confirmation hearings so we can learn about them, right?
But that purpose was hard to discern from the Senate Judiciary Committee’s questioning of Supreme Court nominee Ketanji Brown Jackson.
It’s not that we didn’t learn about Judge Jackson. She outlined the methodology by which she approaches cases, which is less a philosophy than a process. She said she plans to recuse herself from a pending case challenging Harvard’s affirmative action policies. She explained her approach to sentencing, maintaining it is hardly a “numbers game,” but “an act of discretion” entrusted to the judicial branch.
She showed herself to be meticulous in her analysis, admitting “my opinions tend to be on the long side,” and disciplined in demeanor, even when most people would be betrayed by their facial reactions or exasperated sighs. She demonstrated formidable knowledge across areas of law, from testimonial immunity for presidential aides and trademark disputes to complicated environmental and immigration regulations and the evolution of the U.S. Sentencing Guidelines.
Yet she was thoroughly relatable. She spoke plainly and calmly; she smiled readily and genuinely; she relied on three pillars of support — family, friends, and faith — shared by Americans everywhere.
And throughout, as she revealed her record and personal qualities alike, she evaded easy labels. She is neither the “radical” activist Republicans have depicted over social media, nor, for that matter, the reliable liberal some progressive groups believe she is. As Senator Amy Klobuchar observed, Judge Jackson seldom has been reversed, but even when she was, the Supreme Court ultimately sided with her in a handful of cases; in one such case, Guam v. United States, the Court’s unanimous opinion was authored not by any of the Court’s liberals, but by Justice Thomas.
Yet rather than posing meaningful questions to Judge Jackson or absorbing her nuanced answers, several Judiciary Committee Republicans seemed more invested in speechifying about their own agendas.
Yes, a few were measured, if not gentle, during their allotted half hours. Senator Ben Sasse even praised the judge today “for taking us to law school” through her patient, accessible description of certain legal doctrines or concepts. But I am struck by how much more telling the hearings have been about certain GOP senators than Judge Jackson.
Take Senator Lindsey Graham, for example, who voted to confirm Judge Jackson to the D.C. Circuit less than nine months ago, but has repeatedly changed the tenor of the room with a litany of grievances disguised as inquiries. To audible gasps, he asked about the judge’s religious affiliation and church attendance, topics he later proclaimed to be irrelevant and “uncomfortable,” solely to highlight his belief that now-Justice Amy Coney Barrett “was treated very, very poorly” at her 2017 hearings when she was nominated to a federal appeals court.
He then attempted to draw similar parallels between Judge Jackson’s background and what he complained were Democrats’ inappropriate reactions to Justice Alito and retired D.C. Circuit Judge Janice Rogers Brown, insisting “it’s not going to happen to you” while gaslighting her by his own hand.
Graham concedes his obsession with the ghosts of confirmations past, telling NBC News today, “I just resent the hell out of the fact that Amy Coney Barrett’s faith was held against her.” And when NBC asked whether he was “hung up on the past,” Graham didn’t deny it: “I’m very hung up on that we live in a world where a Black woman, African American woman, Janice Rogers Brown, nominated to the D.C. Circuit was filibustered by Democrats for two years. I’m very hung up on that. And, and now you have an African American woman, a wonderful lady; all of a sudden, the rules change.”
Or consider Senator Josh Hawley. Hawley continued his attack on Judge Jackson’s sentencing of child pornography offenders despite multiple media outlets discrediting his accusations or placing them in context, including by reference to Trump-nominated judges’ own sentencing histories (see, for example, here, here, or here).
His chief complaint is that Jackson repeatedly sentenced those offenders to prison terms below those suggested by the federal sentencing guidelines. And Hawley was especially fixated on Jackson’s sentencing of Wesley Hawkins, an 18-year-old with no criminal history who was convicted of possessing sexual images of minors while he was still in high school.
Ultimately, Hawley, who said he “live[s] in fear” that his three young kids “will be exposed to, let alone exploited, in this kind of material,” remarked, “[P]art of my concern with Judge Jackson is that she has not followed the prosecutors’ sentences. . . . [W]e can have a policy debate about whether or not the guidelines are too lenient. I would argue in this era of exploding child pornography, they’re not too lenient at all.” Of course, Hawley never acknowledged that Jackson supplemented Hawkins’s prison term with substantial conditions on his release, including six years of supervision by federal probation officials, mandatory sex offender registration, and enrollment in sex offender assessment and treatment. Nor did he admit Judge Jackson’s sentences have almost always been in keeping with the recommendations of the U.S. Probation Office. Why does that matter? Because, as Judge Jackson explained, at the sentencing stage, the probation office is a stakeholder too: “The probation office appears just like the prosecution and the defense. The probation office has written a report, and they make a recommendation to the court based on their independent analysis related to the facts of a particular crime and defendant and sentence.” But perhaps the most damning response to Hawley’s critique is that the Sentencing Guidelines he portrays as the sine qua non of sentencing were expressly held by the Supreme Court to be unconstitutional if interpreted as mandatory; hence, those guidelines have been non-binding on district courts for nearly seventeen years. Indeed, in that 2005 opinion, United States v. Booker, Justice Breyer wrote: We do not doubt that Congress, when it wrote the Sentencing Act, intended to create a form of mandatory Guidelines system. But, we repeat, given today’s constitutional holding, that is not a choice that remains open.
. . . .
Ours, of course, is not the last word: The ball now lies in Congress’ court. The National Legislature is equipped to devise and install, long term, the sentencing system, compatible with the Constitution, that Congress judges best for the federal system of justice. Congress, however, has never taken up that invitation, nor have the Guidelines been updated to account for the ways child pornography is disseminated in the digital age. That’s why Senator Durbin told Hawley yesterday “we have to accept some responsibility” for any perceived laxity in the sentencing of child pornography offenders. But rather than accept that blame, or spread it around the federal judiciary, where nearly 80 percent of child pornography offenders are sentenced to below-guidelines ranges, Hawley tried to lay it solely at Jackson’s feet. Perhaps worst of all was Senator Ted Cruz, who, like Judge Jackson, is a former Harvard Law Review editor, Supreme Court clerk, and appellate lawyer. (Cruz served as Texas’s Solicitor General, the state’s top appellate advocate, and argued eight cases to the Supreme Court during his tenure.) If any Republican senator should have been expected to home in on substantive law, it’s Cruz. But instead, Cruz turned to Judge Jackson’s role on the board of a private school founded for the express purpose of integrating D.C. classrooms to imply Jackson’s responsibility for the school’s inclusion of two Black authors, Nikole Hannah Jones and Ibram X. Kendi, on a school reading list. Cruz also insinuated that Jackson therefore must embrace Critical Race Theory, which he said “frames all of society as a fundamental and intractable battle between — between the races.” By contrast, Jackson correctly described CRT as the academic study of “the ways in which race interacts with various institutions” while plainly stating it’s “not something that I’ve studied or relied on” as a judge. You would think Cruz would have been chastened by that exchange. But today, Cruz went further, confronting Jackson with several almost farcical hypotheticals he knew no nominee could answer but nonetheless used to stoke panic over gender identity. He asked, “Under the modern leftist sensibilities, if I decide right now that I am a woman, then, apparently, I am a woman, does that mean I would have Article Three standing to challenge a gender-based restriction? . . . Does that same principle apply to other protected characteristics? Could I decide I was an Asian man?” All in all, theatrics like those of Senators Graham, Hawley, and Cruz transformed the nation’s chance to examine their next Supreme Court justice into an embarrassing expose of their own grievances, prejudice, and fearmongering. Faced with a nominee one senator aptly called “a harbinger of hope,” their misplaced focus was our missed opportunity. TRMS segment producer Traci Tillman, who has covered the hearings, contributed to the development of this post.
Lisa Rubin is MS NOW's senior legal reporter and a former litigator.
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