My column about the confirmation by President Biden of Judge Ketanji Jackson Jackson, the Supreme Court nominee has been published by NBC. Here’s an excerpt
The Senate voted 53 to 47 in favor of Judge Ketanji Brown Jackson as President Joe Biden’s Supreme Court nominee. Three Republican senators voted against her, while all fifty Democrats voted for her. Jackson’s confirmation hearings saw many Republicans raise absurd and unfounded objections. But another line of objection to her nomination was eminently reasonable, even if still disputable: her judicial philosophy….
Although GOP senators were entitled to vote against Jackson, many of the arguments they gave were at best questionable. They raised the issue of Jackson’s supposed softness when sentencing those convicted for child sexual abuse offenses during confirmation hearings. Andrew McCarthy, conservative criminal justice specialist and Andrew McCarthy detailed Jackson’s decision in these cases in two National Review Articles.
Even more risible than the pornography accusation was Texas Sen. Ted Cruz’s charge that Jackson’s pre-judicial career as a public defender indicates she has a “a natural inclination in the direction of the criminal” because a public defender’s “heart is with the murderers, the criminals … that’s who they’re rooting for.”
Cruz’s demagoguery was eclipsed by Arkansas senator Tom Cotton who suggested that Jackson might want to defend Nazi leaders being tried in Nuremberg after World War II. The insinuation that she is somehow sympathetic to Nazis is absurd….
Even with such absurdities, Republicans were not wrong to vote against Jackson’s nomination for her judicial philosophy. GOP senator Ben Sasse (Nebraska) clearly acknowledged his objection to Jackson’s nomination based on this basis, but he also recognized that Jackson had “impeccable credentials”, and that Jackson is “an extraordinary individual with an extraordinary American history.”
Sasse and other Republicans could reasonably expect that a liberal nominee would have significant reservations about their preferred approach to interpreting the Constitution, and often cast votes inimical to conservatives on important issues such as affirmative action and gun rights…. I believe Jackson should be confirmed, as her position is likely to be better or more realistic than any other alternatives. But reasonable senators could differ with that assessment….
As presidents can consider the judicial perspective when choosing who to nominate, senators also have the right to vote on confirmation. It is an integral part of her job that a justice employs in making decisions. Barack Obama, an Illinois senator at the time, stated it when he defended his vote for Samuel Alito as George W. Bush’s nominee. “meaningful advice” and “consent are important parts of her job. [by the Senate]… includes an examination of a judge’s philosophy, ideology, and record,” as well as “intellect” and “personal character.”
Such opposition is not unusual in today’s divided Senate. Jackson’s replacement is Justice Stephen Breyer. This was Justice Stephen Breyer who was confirmed in an overwhelming bipartisan vote of 87-9 back in 1994. A majority of the senators who opposed the President’s selections have not supported any nominees since that time, starting with Chief Justice John Roberts. Roberts received 22 votes against him from the 45 Senate Democrats at that time (and one Democrat aligned independent). Since then, over 75% of Senators from each other party have opposed any Supreme Court nominee. Biden was one of the Democratic senators that voted against Alito on grounds of judicial philosophy. Both voted for Roberts.
Some believe that there should not be any differences in judicial philosophy if the nominee is “mainstream”. However, most of the Supreme Court’s bad decisions of that era were in the judicial mainstream. Jackson fits well into the liberal mainstream, as did the recent Republican nominees. This doesn’t mean that they won’t make terrible mistakes. In deciding how you vote, a senator can legitimizely consider the views of a major nominee if they believe that it will produce terrible results.