It’s confirmation week for Judge Ketanji Brown Jackson, President Joe Biden’s pick to replace Justice Stephen Breyer on the Supreme Court. Jackson happens to be a Black woman, so that means we will see more concentrated racist innuendo and overt bigotry from the Republican Party this week than at any time since Donald Trump attempted to rile up a mob to depose the incoming administration. If the Democrats were good at optics, they’d hand out a dog whistle to everyone in the hearing room and instruct them to blow it every time a Republican levied a racist attack.
Republicans are going to lean into the racism and misogyny that motivates their base because they have nothing else to throw at the nominee. Judge Jackson is impeccably qualified, immaculately credentialed, and incredibly well-equipped for a position on the Supreme Court. She has sat on a federal bench for nine years and, if confirmed, will come to the court with more judicial experience than four current Supreme Court justices combined. She spent two years as a federal public defender, so she’ll also arrive with more experience on the defense side of the courtroom than any justice since Thurgood Marshall. And her moral qualifications far exceed the likes of the alleged attempted rapist Brett Kavanaugh or the perpetually compromised Clarence Thomas.
Jackson will spend the week in front of the Senate Judiciary Committee. Chaired by Senator Dick Durbin, the committee consists of 11 Democrats and 11 Republicans, who count Senator Charles Grassley as their ranking member. Monday will consist of opening statements. On Tuesday and Wednesday, the senators will get to ask questions (each senator should have about 30 minutes during the initial round of questions). And Thursday will feature character witnesses brought to speak on behalf of Judge Jackson. Assuming the committee votes to confirm, her nomination will then go to the full Senate.
Once there, and assuming Democrats can hang together, Jackson doesn’t actually need any Republican votes to be confirmed. That’s because Mitch McConnell removed the filibuster in 2017 in order to push Donald Trump’s nominees (ultimately Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett) onto the court. Jackson could therefore be confirmed on a simple party-line vote. She could even win over a few Republicans, should the three who voted last year to elevate her to the US Court of Appeals for the D.C. Circuit ( Susan Collins, Lindsey Graham, and Lisa Murkowski) decide to do so again.
Put simply: While one should never underestimate the ability of the craven wing of the Democratic Party to throw Black women under the bus, Jackson should be confirmed to the Supreme Court. One might expect her confirmation hearing should go more or less like that of Elena Kagan, an Obama nominee who was confirmed during a midterm election year to replace another liberal and thus did not change the balance of power on the court.
And yet. Republicans are still going to Republican. Even if they can’t stop Ketanji Brown Jackson, they’re going to engage in all manner of nastiness, just to rile up their racist, violent base. Republicans demonize Black people because it makes them money, and their attacks on Jackson will be repeated in fundraising material all across the country. Here then is an overview of what to watch out for over the next few days during the confirmation hearings.
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THE CASES
Issuing opinions on cases and controversies is the literal job description of the position Jackson has been nominated to fill, yet Republicans seem to want to talk about anything other than Jackson’s rulings. I think that’s because Jackson’s opinions are entirely mainstream. I haven’t read all of her cases (she’s been on the bench much longer than the justice who was most recently put on the Supreme Court, Amy Coney Barrett), but the ones I have read show a left-of-center jurist who dutifully applies precedent and stays within the confines of acceptable judicial discourse.
Republicans, in other words, can’t attack her opinions on intellectual grounds, but that doesn’t mean they won’t go after some of them for ideological reasons. Here are a few that might trigger conservatives who don’t like it when powerful people are held accountable:
Trump and cronies. Since joining the D.C. Circuit, Judge Jackson has had the opportunity to rule on a couple of cases arising out of Donald Trump’s unprecedented attempts to stop investigations into his wrongdoing. In Committee on the Judiciary v. McGahn, she ruled that former White House counsel Don McGahn couldn’t ignore a subpoena from Congress, and had to testify. In Campaign for Accountability v. DOJ, she enforced a FOIA request against the Trump administration.
These cases were standard applications of the law, made controversial only because of Trump & Co.’s flatly wrong understanding of executive privilege, but I wouldn’t be surprised if some of the Trump sycophants on the Senate Judiciary Committee bring them up. A senator may snidely suggest that Jackson is “against Trump” or “seems to not like Trump” without actually engaging in the substance of her objections. It’s how they are: They go for innuendo when they can’t make an actual point.
Police and punishment. Jackson, who was appointed to the US Sentencing Commission by Barack Obama in 2009, has made rulings forcing prisons to comply with the American with Disabilities Act; ruled against civil asset forfeiture; and stripped qualified immunity from a police officer who arrested an “Occupy Wall Street” protester simply because the protester cussed him out. But she also upheld an officer’s qualified immunity in another case, even though the suspect alleged that the officer arrested him for the crime of being hit by a car and the state subjected him to an unnecessary strip search.
Republicans have a problem with any cop, anywhere, being held accountable, and so they might suggest that Jackson is an anti-police radical. She’s not, and when pressed she’ll talk about the police officers in her family and how she’s been endorsed by some police associations. I always cringe when Democrats go out of their way to show solidarity with law enforcement, but these are the times we live in. No “defund” attack will stick on Jackson, because she’s just not that person.
Lockheed Martin. Here’s something that might come at Jackson from the left. A group of Black employees alleged racial discrimination against their employer, mega-military contractor Lockheed Martin, and launched a class action litigation against the company. Lockheed agreed to a $22 million settlement, and the lawyers for the workers asked Judge Jackson, then a district court judge, to certify all 5,500 Black employees as a class so they could share in the money. But Jackson refused, ultimately vacating the settlement. She ruled that all 5,500 Black employees were not similarly situated enough to constitute a class and, moreover, that the $22 million was not enough to cover all of those potential claims. She also ruled that the proposed settlement was not fair because Lockheed wanted all Black employees to give up future claims against the company.
I think Jackson’s ruling was correct: She was applying a Supreme Court precedent about class certification, Walmart v. Dukes, written by Antonin Scalia. I think Scalia’s opinion was wrong, but, as a lower-court judge, Jackson was right to recognize it as precedent and apply it faithfully. Reasonable people might disagree, and they would have a point: The upshot of Jackson’s ruling was that nobody got the money, and that does feel wrong.
THE PROFESSION
As the above rulings suggest, despite her long years on the bench, there isn’t a lot that people—even conservative people—can complain about when it comes to her judicial rulings. She’s been left-leaning but mainstream in her approach to cases. So instead of attacking her record as a jurist (which is the job she is applying for), Republicans are going to come after her for her role as an advocate. Indeed, former public defenders are usually not nominated for the Supreme Court by Democrats because Democrats live in fear of Republican smear campaigns.
As a federal public defender, Jackson defended men swept up and detained at Guantánamo Bay as part of the United States’s “War on Terror.” The Republican National Committee has tried to turn this into an attack, arguing she was a “zealous” defender of those detainees—as if she should have been anything else. Republicans have also criticized Jackson for continuing to defend these clients even after she returned to private practice. Somehow, it’s very on-brand for the modern Republican Party to argue that people should be lazy and incompetent at their jobs and then abandon their principles once it is financially lucrative to do so.
The Gitmo attacks are pathetic, but a somewhat normal example of how Republicans try to punish people who work on behalf of non-white communities. But there’s another attack, recently embraced by Republicans, that is far more sinister. In the last few days, Senator Josh Hawley has gone full QAnon, suggesting that Jackson somehow supports sexual predators and pedophiles.
Without getting too deep in the weeds (though Vox has an excellent explainer on all this): In law school, Jackson wrote a note in The Harvard Law Review questioning post-release sex-offender registration requirements. Jackson’s note asked if those laws could be applied retroactively: In other words, if you were a convicted sex offender who had already been released, and then, at some point after, your state required registration, could you be required to register, even though you had been peaceably living your life?
The fact that Jackson is talking about ex post facto laws is lost on the willfully ignorant Hawley, of course, who claims that Jackson is “soft” on pedophilia. He has also dredged up seven child pornography cases in which he claims that Jackson departed from the federal sentencing guidelines. This is factually true, but leaves out the important context that sentencing guidelines for child pornography are thought to be too draconian by a number of judges, and even some prosecutors, and that a majority of people convicted of child pornography crimes receive less than the suggested sentence.
If Hawley really thought that advocating reduced punishments for sex offenders was a problem, he’d be complaining about Justice Neil Gorush, who wrote a dissent advocating that some 500,000 convicted sex offenders be removed from the federal sex offender registry. But, you know, when white male Republicans do it, it’s OK, I guess.
It’s simply not credible to draw a link from these facts to say that Jackson is “soft” on terrorism or child porn—as Republicans are already claiming. But people like Hawley need not act in good faith. He’s a Republican and he knows that this kind of rhetoric will rile up his MAGA and QAnon base.
That’s because it literally has before. I’ll bet all my money Hawley is aware of U.S. v. Welch—another case Ketanji Brown Jackson adjudicated. In that case, Edgar Madison Welch attacked a pizza parlor in Washington, D.C., because he was led to believe that there was a child pornography ring in its basement. Yep, the Pizzagate case. Jackson sentenced Welch to four years in prison. Defense attorneys had asked for just 18 months, but Jackson was still merciful: The prosecution wanted him put away for four-and-a-half years.
THE STRAIGHT-UP RACISM
Once they punch themselves out on their new version of Pizzagate, Republicans will be left with their old stand-by: straight-up racism. They will call Jackson an “affirmative action” nominee. They will ask her if she feels bad that white men were not considered for this appointment. They might ask her about her LSAT scores (as they’ve been instructed to do by Tucker Carlson). They might ask her to recuse herself from cases involving racial discrimination, and they’ll certainly ask her to recuse herself from the Harvard affirmative action case. (Jackson currently sits on Harvard University’s Board of Overseeers, a position I assume she’ll resign from if she is confirmed.) Recent history and the Republican Party’s antipathy toward women, Black people, and Black women in particular suggest there is no low the Republicans won’t sink to.
Hell, they might even bring me up. I wrote a book outlining many of the ways the Constitution is not good (read some here) and, well, I’m Black and she’s Black and the conservative Judicial Crisis Network just doesn’t seem to believe that two Black people could hold different views—even if they’ve never met.
None of this will work. I do not expect any of these Republican tricks to succeed, because they are untethered from substantive criticism and designed only to make their mediocre white base feel superior to a Black woman of the highest caliber. Republicans can’t stop her; they can only smear her, so that’s what they’re going to do. It’s always possible that Joe Manchin or Kyrsten Sinema, who have been reliable votes on court appointments thus far, will balk now that the cameras and their corporate handlers are watching. But smart money says that dumb racist attacks have been so normalized by the Republican Party that they’ve lost some of their power.
It’ll be an ugly few days, but Ketanji Brown Jackson is going to be the next associate justice of the Supreme Court of the United States. Her record is too good to expect otherwise.
