As Republicans laid the groundwork for their opposition to Judge Ketanji Brown Jackson’s Supreme Court nomination Monday and early Tuesday, they spent about as much time talking about hearings that had come before as they did the hearings that lay ahead.
In each case, it’s worth looking at precisely what we’re talking about. Politicians’ summaries, after all, are prone to spin and oversimplification. And in some of these cases, Republicans were among those supporting the scrutiny.
Estrada and Brown featured prominently, in large part because of the parallels to Jackson. Both were President George W. Bush’s nominees to what’s known as the nation’s second-highest court, the D.C. Circuit Court of Appeals — the court to which Jackson was confirmed last year. Both were viewed as potential future Supreme Court picks — just as Jackson was at the time. Democrats pushed back hard on both nominations.
“If this process were conducted in good faith, Miguel Estrada and Janice Rogers Brown might well be on the Supreme Court today,” Sen. Ben Sasse (R-Neb.) said Monday. “But their opponents lied and bullied, rather than accepted principled minority judges.”
Sen. Ted Cruz (R-Tex.) referred to a contemporaneous Democratic email during the Estrada process which stated that their side should fight Estrada’s confirmation “because … he is Latino.” While the quote was certainly objectionable, Cruz stripped it of some context; the fuller quote refers to Estrada’s heritage making him more formidable as a potential future Supreme Court nominee.
Democrats’ public pushback on Estrada at the time was focused on something else entirely, of course: his record — or lack thereof. They accused him of being too extreme and noted he had not been a judge or an academic, leaving less of a paper trail. It was also the first time an appeals court judge was successfully filibustered: Democrats halted Estrada’s nomination in a succession of cloture votes, even as four of them voted to move forward. He ultimately withdrew.
On Brown, the argument again was that she was too extreme. And while her nomination was held up for two years, she was ultimately confirmed in 2005 as part of a deal brokered by the so-called “Gang of 14.” At the time, The Post’s Charles Babington wrote of the pushback against Brown:
Opponents focused on Brown's stinging critiques of government programs, including those designed to help low-income Americans. She once called a landmark 1937 court decision allowing federal regulation of workplace conditions “the triumph of our own socialist revolution.” She wrote that “where government moves in, community retreats and civil society disintegrates … The result is a debased, debauched culture which finds moral depravity entertaining and virtue contemptible.” In a speech, she said, “If we can invoke no ultimate limits on the power of government, a democracy is inevitably transformed into a kleptocracy — a license to steal, a warrant for oppression.”Several Democrats noted that in a dissenting opinion in California, Brown wrote, “We cannot simply cloak ourselves in the doctrine of stare decisis,” the Latin term for the principle that courts should follow precedent decisions. “She is the epitome of an activist judge,” [then-Senate minority leader Harry] Reid said, needling conservatives who long have decried “judicial activism.” Brown “is a judge; she is not a legislator,” Reid [(D-Nev.)] said. “She has no right to do the things that she does.”
Brown was considered a potential Supreme Court pick, but was passed over.
Bork is one of the most oft-cited examples of Democrats supposedly going too far. His Supreme Court nomination was defeated in 1987 after Democrats pilloried him as an extremist.
“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,” Sasse said. Cruz added: “It is only one side of the aisle, the Democratic aisle, that went so into the gutter with Judge Robert Bork that they invented a new verb, to ‘Bork’ someone.”
Back then, perhaps the most over-the-top assessment of Bork came from Sen. Ted Kennedy (D-Mass.), who said, “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, [and] rogue police could break down citizens’ doors in midnight raids,” among other charges. Bork would later reflect, “There was not a line in that speech that was accurate.” Upon Kennedy’s death in 2009, the Economist wrote that Bork “was right. But it worked.”
While Bork’s defeat was engineered by Democrats, it’s worth noting that six Republicans also voted against him. Sen. John Warner (R-Va.), for one, concluded that Bork lacked the “record of compassion, of sensitivity, of an understanding of the pleas of the people to enable him to sit on the highest court of the land.” He said that the record was incomplete “as to the character of this man, the volatility of his earlier career.” So to the extent that Bork received unfair scrutiny, a not-insignificant number of Republicans agreed he was unfit.
Thomas was the last African American to be nominated to the Supreme Court, and his hearings quickly devolved into chaos over Anita Hill’s allegations of sexual misconduct. Republicans quickly rallied around Thomas and offered all manner of explanations for Hill’s allegation, including that she was delusional and suffered from “erotomania,” and that she might have based her account on previous writings. While Republicans have cried foul over Thomas’s treatment, some liberals have also criticized President Biden — who was then chairman of the Judiciary Committee — for allowing the spectacle to unfold as it did.
Kavanaugh’s hearings were, in some ways, a replay of Thomas, except this time in the context of the #MeToo movement. Cruz on Monday said it was “one of the lowest moments in the history of this committee.”
Republicans accused Democrats of springing Christine Blasey Ford’s allegations on the eve of the hearings — sometimes launching highly speculative theories for how that occurred. Even Democrats acknowledged that they could have been handled better. Allegations from other women were far less substantiated.
But when Ford’s allegation surfaced, several Republicans labeled them worthy of examination — including Cruz. “These allegations are serious and deserve to be treated with respect,” Cruz said. “The allegations presented to the Senate Judiciary Committee last week are serious,” Sen. James Lankford (R-Okla.) said. Moderate Sens. Jeff Flake (R-Ariz.), Lisa Murkowski (R-Alaska) and Susan Collins (R-Maine) ultimately held up a vote on Kavanaugh so the FBI could conduct a review, after which all three wound up voting for him.
Of course, just because Republicans agreed the allegations were serious doesn’t mean they signed off on how Democrats handled them. Sen. Charles E. Grassley (R-Iowa) ultimately concluded, “The revelation of last-minute allegations tested the committee in many ways. But these investigative efforts rose to the occasion and were critical to helping us obtain the truth.”
A final nomination that Republicans highlighted on Monday and Tuesday was that of Barrett in 2020. Sen. Marsha Blackburn (R-Tenn.) referred to “Justice Barrett, who was questioned about her faith and whether that made her suitable for the court.” Graham alluded to it too, telling Jackson on Monday that “there won’t be any questioning of where you go to church, what kind of groups you’re in church, how you decide to raise your kids, what you believe in, how you believe in God.”
By Tuesday, though, Graham did indeed ask Jackson about her faith and how strong it was — “On a scale of 1 to 10, how faithful would you say you are, in terms of religion?” — in the context of raising Barrett’s alleged maltreatment.
The Barrett scrutiny actually stemmed not from her Supreme Court hearing, but from her earlier appeals-court hearing in 2017 — and Democrats backed off it significantly in 2020. In 2017, some had raised concerns about how Barrett’s devout Catholicism would inform her judgments, with Sen. Dianne Feinstein (D-Calif.) infamously telling Barrett that “the dogma lives loudly within you, and that’s of concern …”
As we wrote in 2020, though, despite GOP repeated attempts to raise this issue at Barrett’s hearings, Democrats actually did very little to mine it:
In fact, the words “religion,” “Catholic,” “Christian” and “faith” were invoked in relation to religious issues about 80 times over two days of question-and-answer sessions with Barrett. Republicans and Barrett accounted for 75 of them; Democrats, only five.Among the few times that Democrats did invoke faith, they praised Barrett for hers or sought to insulate themselves from the perception that they might be raising it as an issue.
Democrats’ decision to ease up was perhaps a tacit acknowledgment they had gone too far the last time, but there was a noticeable course correction when the stage was bigger.