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Friday, December 2, 2022

Smith: ‘I’m sorry, (Judge) Jackson’

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I am for real.

The political theater surrounding the historic nomination of Judge Ketanji Brown Jackson to the Supreme Court has often been equally amusing and frustrating, especially because the outcome is pre-determined given Democratic control of the Senate. The only suspense is whether any Republicans will vote for her.

Presidents have made 165 nominations to the Supreme Court since it was established in 1789; 127 have been confirmed, with seven declining to serve. If confirmed, Judge Jackson would be the 115th person — and first Black woman — to serve. Importantly, the Senate has rarely been a rubber stamp for the president; even two of George Washington’s 14 nominees were rejected. Still, the vast majority of nominees — even the controversial ones — are eventually confirmed. Robert Bork is an exception; Clarence Thomas and Brett Kavanaugh are the rule. Some, such as Harriet Miers, have withdrawn their nomination when it appeared to be in trouble.

Historically, the confirmation process has largely been bipartisan. (Three of Ronald Reagan’s five nominees were unanimously confirmed.) However, razor thin vote margins — along party lines — have become the norm in our closely divided Senate. Sadly, nominees have become mere political pawns in the high-stakes chess match between Republicans and Democrats. Indeed, most senators aren’t really speaking to the nominees during the process; they’re speaking to their constituencies — and to each other. (Looking at you, Lindsey Graham.) Long gone are the days when most senators simply asked questions like the once obligatory metaphor of umpires calling “balls and strikes.”

To be clear, this problem is bipartisan. In 2016, then-Senate Majority Leader Mitch McConnell engaged in despicable gamesmanship regarding President Obama’s nomination of Merrick Garland. (McConnell refused to give the Senate the opportunity to vote on Garland, who is now U.S. Attorney General.) This still enrages Democrats, very few of whom voted for any of Donald Trump’s nominees. As the nation becomes ever more politically polarized, it is nearly impossible to see an end to this reality.

While the partisan animosity over judicial nominees is real, senators usually don’t see the nominees as genuine foes; rather, their goal is to make them foils. Still, Republican attacks-designed-as-stupid-questions seem particularly personal when it comes to Judge Jackson.

Leading up to the hearings, they even challenged her bona fides — despite the fact that she has more experience than four justices who currently sit on the court. Further, she sits on the D.C. Court of Appeals and has been confirmed by the Senate thrice — including last year. Then there are the familiar dog whistles and tone-deaf racial stereotypes. For example, Sen. John Kennedy of Louisiana expressed his great surprise at how “articulate” Judge Jackson is.

Of course, racism directed at Judge Jackson is not confined to the Senate. Tucker Carlson, the Eddie Haskell of white nationalism, called for the release of Jackson’s LSAT scores. (He never has done so for white nominees.) To be clear, anything that Judge Jackson, or any nominee, has done and said is fair game. Further, any decision that she has made is in bounds. Yet, in considering her experience and record, if Judge Jackson is not qualified to be elevated to the Supreme Court, literally nobody is.

Of course, all of this is Kabuki theater. As I stated above, Judge Jackson is going to be confirmed — as she should be. Yet, in our highly partisan environment, Republicans will rarely vote for nominees from Democratic presidents and vice versa. The simple truth is that if Jackson were asked exactly the same questions and offered precisely the same answers as now-Justice Barrett did during her (i.e., Barrett’s) hearing, roughly the same number of Republicans would vote for her. Sadly, the party of the nominator is more important than the qualifications of the nominee. This is exceedingly dangerous for our democracy.

Through it all, Judge Jackson has exhibited superlative composure, self-control and even good humor. (I strongly suspect that President Biden would be forced to withdraw her nomination if she reacted to tough questioning in the way that Brett Kavanaugh did during his SCOTUS confirmation hearing.) Judge Jackson’s temperament will be crucial when she becomes the first Black woman ever to serve on the highest court in the land. Our ancestors will weep with joy.

Larry Smith is a community leader. Contact him at larry@leaf-llc.com.

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