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Republicans struggle for an effective attack on Ketanji Brown Jackson

GOP senators have not agreed on a strategy for questioning the first Black woman to be nominated to the Supreme Court, or even whether they have a strategy.

Supreme Court nominee Ketanji Brown Jackson with Sen. Lindsey O. Graham (R-S.C.), a senior member of the Senate Judiciary Committee. (Jabin Botsford/The Washington Post)

In fall 2020, when Amy Coney Barrett was facing her Supreme Court confirmation, Democratic senators trying to derail her nomination devised a consistent and clear line of attack: That she would be a threat to Americans’ health care and the Affordable Care Act.

For Senate Republicans grilling Ketanji Brown Jackson next week, the message is not nearly as cohesive — if there is a message at all.

In the weeks since the White House launched its full-court offensive on Capitol Hill to get Jackson confirmed, Republicans have struggled to land an attack on Jackson, who even the Senate GOP leader has said will probably be confirmed. Interviews with more than a dozen Republican senators, aides and advisers involved in the nomination fight make it clear that Republicans are largely pursuing their own individual strategies ahead of the hearing, with no overarching theme.

“I think everybody will sort of pursue the line of questioning that they care most about,” said Sen. John Cornyn (R-Tex.), a senior member of the Senate Judiciary Committee. “I want to say I’m not a member of any organized political party — I’m a Republican.”

Some GOP senators have targeted Jackson’s representation of criminal defendants when she was a public defender, but that line of attack has made other Republicans uncomfortable. “I’m not going to criticize her for any client she’s represented. We’ve all represented clients that we didn’t agree with and in some cases, didn’t even like,” said Sen. John Neely Kennedy (R-La.). “But everybody has the right to counsel.”

What to know about Ketanji Brown Jackson

The panel’s top Republican, Sen. Charles E. Grassley (Iowa), has been particularly coy about the lines of questioning he plans to pursue. He has mostly raised procedural complaints, about the documents Jackson should be asked to produce — an issue that has done little to derail previous nominees.

Ultimately, Republicans face the basic question of how much of a fight they want to put up against Jackson in the first place. If confirmed, she would not change the court’s ideological balance, since she’d be replacing a fellow liberal in Justice Stephen G. Breyer. Public opinion polls show that voters believe Jackson should be confirmed by large margins.

Privately, some GOP officials —while perplexed at the Senate Republicans’ current approach— argue that spending significant time and effort going after the first Black woman to be nominated to the Supreme Court is not worthwhile politically, and that it makes far more sense to focus on pocketbook issues ahead of the midterms.

“Given the war in Ukraine, and the economic pain inflation and high gas prices are causing Americans, most people aren’t focused enough on Judge Jackson’s record being soft on crime to tell if it’s resonating,” said one senior Republican aide, who requested anonymity to candidly assess the party’s strategy.

Still, at least three potential GOP presidential nominees — Sens. Ted Cruz of Texas, Tom Cotton of Arkansas and Josh Hawley of Missouri — sit on the Judiciary Committee, and they may want to use the opportunity to generate enthusiasm among the Republican base by taking more of a scorched-earth approach, even if the rest of the party doesn’t.

The dynamic could change as public attention pivots to Jackson’s confirmation hearings beginning Monday, but so far, the landscape has altered little since President Biden announced Jackson as his pick on Feb. 25.

No Democrat in the evenly divided Senate has publicly suggested doubts about voting to confirming her, and a small handful of Republicans have indicated they are genuinely considering supporting Jackson. The full Senate is expected to consider her nomination as soon as early April.

Inside Biden's pick of Jackson

Democrats now can take advantage of a rules change that requires only a simple majority to confirm a Supreme Court justice, an alteration that stymied their efforts to sink the nominations of Barrett and Brett M. Kavanaugh. If the Senate splits 50-50, Vice President Harris could break the tie in Jackson’s favor.

Interviews with Judiciary Committee Republicans show that the mix of topics they plan to address — they will get 50 minutes of questioning each — is largely a mishmash that includes questions about judicial philosophy, queries about Jackson’s constitutional views, her background representing criminal defendants and whether she disavows proposals to expand the Supreme Court.

Some Republican aides said that because conservatives generally don’t like to prescribe policy outcomes through the courts, it has been tougher for them to come up with a catchy slogan, as Democrats did when it came to abortion and health care. (Liberals dispute conservatives’ claim that they’re reluctant to push policy preferences in the courts.)

If there is a common thread that Republicans have floated against Jackson, it’s that she is weak on crime. The White House and Senate Democrats have worked to furiously bat down these attacks, promoting her endorsements from groups such as the Fraternal Order of Police and former national security officials.

Senate Minority Leader Mitch McConnell (R-Ky.), while remaining complimentary of Jackson personally, has sought to weaken her standing by focusing on some of the outside organizations advocating for her — what he termed a “soft-on-crime brigade” of groups that has lined up behind the nominee.

“I was just talking about some of her support groups,” McConnell said this week when asked to reconcile his comments with the array of law enforcement groups that have endorsed her. “They’re always anxious to talk about groups that support our nominees when we have a Republican president. What’s good for the goose is good for the gander.”

Those comments drew a quick response from White House officials.

“I would think, quite frankly, that the Fraternal Order of Police, the International Association of Chiefs of Police, the 60-plus chiefs from around the country that have signed endorsement letters, the attorneys general that signed endorsement letters, the former DOJ officials, the former homeland security — I think they’d be a little surprised to be classified as a ‘soft-on-crime brigade,’ ” said former senator Doug Jones (D-Ala.), who is helping Jackson navigate the confirmation process on Capitol Hill.

On Wednesday, Hawley launched a fresh volley against Jackson that was rooted in what he called an “alarming sentencing leniency for sex criminals.” Among other criticisms, Hawley asserted that Jackson, as a district court judge, had deviated from federal sentencing guidelines to favor the defendant in “every single child porn case for which we can find records.”

Administration officials pushed back, with White House spokesman Andrew Bates saying Thursday that “in the overwhelming majority of her cases involving child sex crimes, the sentences Judge Jackson imposed were consistent with or above what the government or U.S. Probation recommended.”

Still, there were signs Thursday that Hawley’s attack was starting to percolate among Republicans. An aide to Sen. Marsha Blackburn (R-Tenn.) — the sole female Republican on the committee — said Blackburn plans to raise the issue as well during the hearing, and Sen. Mike Lee (R-Utah) tweeted in part, “We need real answers.”

Hawley, in an interview, also said he plans to raise Jackson’s representation of detainees at Guantánamo Bay when she was a public defender and then as a private attorney.

“I’d like to get some better understanding of the arguments that she made — both as a public defender and in private practice — in terms of sanctioning the government, arguments she made about the prisoners themselves, the terrorists themselves and then her position on having those people tried in civilian court,” Hawley said.

But the focus of some Republicans on the individuals Jackson defended has drawn reservations from Kennedy, who also sits on the Judiciary Committee. Kennedy said he does not recall ever criticizing a fellow attorney for a client he or she represented: “You can, if you want to, if that’s what my colleagues want to do,” he said. “I just don’t feel like it’s fair.”

Much of the early combat from Republicans, knowing the party appears likely to lose the confirmation battle, has been focused on ensuring that Democrats don’t reap any political benefits from installing the first Black woman to the Supreme Court. In a Quinnipiac Poll this week, 52 percent of those surveyed said that Jackson should be confirmed, while 24 percent disagreed. Nearly a quarter of Americans in the poll said they had no opinion.

“Republicans should make it a political wash for democrats, not a political win,” said Mike Davis, a former top aide to Judiciary Committee Republicans who now runs the Article III Project, an outside group that promotes naming conservatives to the judiciary.

As of this week, Jackson will have met with 44 senators, including all 22 members of the Judiciary Committee, according to the White House. Republican senators have uniformly described those meetings as cordial.

As for Grassley, the top Republican on the committee, his public concerns so far have been strictly procedural. He is mired in a dispute over additional documents from Jackson’s time serving on the United States Sentencing Commission, pushing for access to paperwork such as emails and files that Democrats insist are superfluous.

The top Democrat and Republican on the Judiciary Committee have often sent requests for documents involving Supreme Court nominees together in a spirit of cooperation. But this time, Sen. Richard J. Durbin (D-Ill.), the chairman, did not sign off, saying all the documents relevant to Jackson’s service on the Sentencing Commission are already readily available.

Otherwise, Grassley has said little about what he plans to do next week during Jackson’s hearing, aside from vowing to treat her with respect.

“I’m not going to tell you,” Grassley said of the questions he will ask, “because I want them to be a surprise.”