The pretense is gone — the pretense that Supreme Court confirmation hearings are about determining nominees’ fitness for office, gleaning a sense of their legal acumen and approach to judging, and gathering the information necessary to exercise a solemn senatorial power.
The confirmation hearings just concluded for Supreme Court nominee Ketanji Brown Jackson represented the culmination of a sad trajectory. Nominations and hearings have always had a political component; after all, the Framers assigned the confirmation power to a political branch.
But never has a confirmation hearing been less about law and more about partisan point-scoring and presidential campaign-launching.
The 1987 confirmation hearings for Robert H. Bork kicked off the modern judicial wars, and Republicans still seethe over Bork as Democrats’ original sin. “We started down this road of character assassination in the 1980s with Judge Bork’s hearings and senators have been engaged in disgusting theatrics ever since,” said Sen. Ben Sasse (R-Neb.).
I was there, and what actually happened was, to borrow Bork’s famous description of why he wanted to be a justice, an “intellectual feast” — especially in comparison with this past week’s food fight. He was defeated by a vote of 58 to 42, including six Republican senators opposed. (Two Democrats voted to confirm him.)
That wasn’t because Democrats dragged him “into the gutter,” as Sen. Ted Cruz (R-Tex.) complained. Bork defeated Bork all by himself, thanks to his earlier, incendiary writings and then his testimony before the committee. His expressed views were so extreme and so far outside the legal mainstream that his confirmation failed by the largest margin in history.
“His view of the law is at sharp variance with more than a century of Supreme Court decisions which have applied equal protection to women, aliens, illegitimates, indigents and others,” said Sen. Arlen Specter (R-Pa.), announcing his vote.
Contrast this with the case, such as it is, against Jackson. There were interludes of substance involving her judicial philosophy and methodology for deciding cases, her understanding of the substantive due process cases that led to rulings supporting abortion rights and same-sex marriage, even a case or two on which she had ruled.
But with minds made up, substantive probing mostly gave way to posturing.
“On a scale of 1 to 10, how faithful would you say you are in terms of religion?” asked Sen. Lindsey O. Graham (R-S.C.)
“Can you provide a definition for the word ‘woman’?” asked Sen. Marsha Blackburn (R-Tenn.) And, “do you believe child predators are misunderstood?” Quoting from Jackson’s college thesis, Blackburn asked, “What personal hidden agendas do you harbor or do you think other judges harbor?”
Sen. Tom Cotton (R-Ark.), seeking to turn Jackson’s defense of accused terrorists against her: “First off, let me just ask, do you think most detainees at Guantánamo Bay were mostly terrorists or mostly, I don’t know, innocent goat farmers?” And: “Okay, do you think America would be safer or less safe if we released all the detainees at Guantánamo Bay?”
Sen. John Cornyn (R-Tex.) on that subject: “Why in the world would you call Secretary of Defense Rumsfeld and George W. Bush war criminals in a legal filing?”
Answer: Jackson didn’t. A habeas corpus petition that she filed alleged the government had engaged in “torture and other inhumane treatment” that “constitute war crimes.” Legal rules effectively required that Rumsfeld and Bush be named; after the administration changed, Barack Obama was substituted as a defendant.
Not that this deterred Republicans trying to make it look as though Jackson had smeared the former president. “Judge, official capacity, personal capacity, all of that is just a bunch of procedural gobbledygook,” observed Cotton, Harvard Law School 2002. “It sounds like a debate about how many terrorists can dance on the head of a pin to me.”
None of this — none — was designed to elicit useful information from Jackson. Its goal was to rough her up and underscore GOP talking points.
Hence the microscopic — and out-of-context — focus on what Jackson called “this small subset of my sentences,” in child pornography cases, as if a Justice Jackson would somehow use her power to unleash child predators on the country.
Hence the Cruzian performance art, complete with prop books, about, of all things, the curriculum at Georgetown Day School, which Jackson’s daughters attended and where she sits on the board.
Cruz, holding up a copy of Ibram X. Kendi’s “Antiracist Baby”: “Now this is a book that is taught at Georgetown Day School to students in pre-K through second grade, so 4 through 7 years old. Do you agree with this book that is being taught with kids that babies are racist?”
What does this possibly have to do with Jackson’s suitability to serve on the high court? To ask that question is to miss the larger point: That is no longer what this exercise is about.