The Senate put Ketanji Brown Jackson on a clear track to be confirmed later this week as the Supreme Court’s 116th justice — and its first Black woman — after three Republicans joined Democrats to advance her nomination in a Monday vote.
All 50 members of the Democratic caucus also backed Jackson in a 53-to-47 procedural vote Monday evening, but the late-breaking support of the two GOP senators represented a minor triumph for President Biden and congressional Democrats who were eager to put a bipartisan stamp of approval on a nominee whom many Republicans had eagerly painted as a soft-on-crime leftist radical.
In a statement, Murkowski praised Jackson’s qualifications and temperament, as well as her “demonstrated judicial independence” and “the important perspective she would bring to the court” as a former Supreme Court law clerk, federal public defender, trial judge and now appeals court judge.
Her decision, she added, “also rests on my rejection of the corrosive politicization of the review process for Supreme Court nominees, which, on both sides of the aisle, is growing worse and more detached from reality by the year.”
In his own statement, Romney also praised Jackson, declaring his support after concluding that she is a “well-qualified jurist and a person of honor.”
The two Republicans made their statements just hours after a Senate panel deadlocked on her nomination along party lines, capping off several frenetic weeks of personal meetings, days of rigorous testimony and hours of intense sparring about her judicial record.
The Senate Judiciary Committee spent more than three hours debating Jackson’s nomination Monday, with its 22 members clashing over Jackson’s qualifications for sitting on the nation’s highest court. Jackson, 51, was confirmed to the U.S. Court of Appeals for the District of Columbia Circuit less than a year ago, after about eight years as a federal trial court judge in Washington.
The panel’s tie reflected an evenly divided and often gridlocked chamber that has frequently been riven by partisan disputes. But it was sufficient to keep Jackson’s nomination moving. Monday’s floor vote discharged Jackson from the panel and set up a final confirmation vote to take place as soon as Thursday.
While Jackson won new Republican support in the Senate on Monday, she also drew criticism from the only Black Republican senator, Tim Scott of South Carolina. “The historic nature of Judge Jackson’s nomination reinforces the progress our country has made. However, ideology must be the determining factor — not identity — when considering such an important lifetime appointment,” Scott said in a statement explaining his opposition. “It is clear that Judge Jackson’s judicial philosophy and positions on the defining issues of our time make her the wrong choice for the Supreme Court.”
Democrats, determined to win some bipartisan backing for Jackson, took pains to hail the pathbreaking nature of her nomination as they pressed for her confirmation Monday. Judiciary Committee Chairman Richard J. Durbin (D-Ill.) called the panel’s vote a “historic moment” and said Jackson would bring “the highest level of skill, integrity, civility and grace” to the court.
“Hers is a uniquely American family story, how much hope and promise can be achieved in just one generation,” he said. “I’m proud we can bear witness to it.”
After the tie vote confirmed no committee Republicans would support her, Durbin said he was “disappointed” by the outcome but expressed hope — with Murkowski and Romney still deliberating — that multiple Republicans would ultimately back her on the Senate floor.
“I thought that Judge Jackson was going to be the messenger of good news that the Senate Judiciary Committee was changing,” Durbin said. “Unfortunately, it didn’t happen.”
Monday’s action came after two days of tense hearings last month in which several Republican senators sharply grilled Jackson on her record as a trial judge — particularly her sentencing decisions in some child pornography cases. Multiple GOP senators have cited her criminal sentencing record in their opposition, with Minority Leader Mitch McConnell (R-Ky.) calling her nomination part of “an ideological mission to make the federal bench kinder and gentler to criminals” as his party gears up to run on law and order in November’s midterm elections.
Sen. Charles E. Grassley (R-Iowa), the top Republican on the Judiciary Committee, announced his expected opposition to Jackson at the top of Monday’s meeting, citing “fundamental different views on the role of judges and the role that they should play in our system of government.”
Grassley accused her of being evasive under questioning and of adopting a “lenient approach to criminal law and sentencing.” He focused not on the child pornography cases but on her decision to reduce the felony sentence of a “drug kingpin” under the First Step Act, a bipartisan criminal justice reform bill passed during the Trump administration.
Jackson, Grassley said, made “a terrible and dangerous misinterpretation” of the law in choosing to halve the sentence of Keith Young, who was serving a 20-year term for drug trafficking and firearms convictions. Jackson defended her decision during her hearings last month, saying that the sentence reduction was permissible under the law and justified by the circumstances of the case.
“We need confidence that judges will interpret the laws as they’re written,” Grassley said. “Judge Jackson’s reinterpretation of a law I helped to write doesn’t give me that confidence.”
At Monday’s meeting, Durbin praised Grassley but made pointed comments about other Republicans on the Judiciary Committee. Without naming names, he took umbrage at those who “repeatedly interrupted and badgered Judge Jackson and accused her of vile things in front of her parents, her husband and her children.”
“It is unfortunate that some moments in our hearing came to that,” he said. “But if there is one positive to take away from these attacks on her, it is that the nation saw the temperament of a good, strong person ready to serve on the highest court of the land.”
Sharper rhetoric came from Sens. Tom Cotton (R-Ark.), Ted Cruz (R-Tex.) and Josh Hawley (R-Mo.) — among the handful of panel members who have signaled future presidential ambitions. Attacking Jackson’s nomination Monday, Cotton said the judge “habitually sympathizes with criminals over victims” and acted as “more of a defense attorney for criminals from the bench than a judge.”
“As a trial judge, Judge Jackson could only give the benefit of the doubt to one criminal at a time,” he said. “As a Supreme Court justice, she would be able to give the benefit to criminals nationwide.”
Cruz, a former presidential contender, made the connection between Jackson’s nomination and the GOP political case against Democrats plain in his comments Monday.
“Her record demonstrates that it is 100 percent certain she will vote to overturn the death penalty and that repeatedly she will vote to overturn strict sentences on violent criminals, to release violent criminals from jail, to overturn strict punishments on sex offenders,” he said. “And my Democratic colleagues like to say when crime is skyrocketing … it’s not my fault. Well, I’ll tell you what: When you vote to confirm justices who released criminals over and over and over again in a way that is wildly out of the mainstream, it is the Democrats’ fault.”
Sen. Amy Klobuchar (D-Minn.) pushed back on the GOP claims, noting that the sentences Jackson handed down in the child porn cases usually met or exceeded the recommendations of federal probation officials — and she made note of several Republican-nominated judges who had made similar judgments in sentencing those types of cases.
“I don’t think they should be dragged into this just because they happened to make decisions that were below guidelines,” she said of the GOP judges. “But they could all have been dragged through the mud, too.”
Several Republicans cited not her criminal sentencing decisions but a civil case, brought by an activist group against the Trump administration challenging the Department of Homeland Security’s authority to quickly send undocumented immigrants back to their home countries.
Jackson in that case ruled that a federal law giving the homeland security secretary discretion in those cases was trumped by another federal law governing executive decision-making. An appeals court unanimously overturned Jackson’s decision, and Republicans pointed to that as evidence of ideological and political bias.
“She took the plain meaning of the statute, set it aside, did legal gymnastics to basically issue a temporary injunction,” said Sen. Lindsey O. Graham (R-S.C.). “That to me says everything I need to know about how she’s going to govern. She wants the outcome. She’s going to find it. She’s going to get it. Activist to the core.”
Graham voted last year to confirm Jackson to the appeals court seat she now holds — a vote he took after Jackson’s decision in the immigration case.
He explained his change of heart Monday by saying he was inclined to defer to presidents on lower-court nominations. “But now that you’re talking about the Supreme Court,” he said, “you’re making policy, not just bound by it.”
Channeling Democrats’ frustration at Jackson’s treatment, Sen. Cory Booker (D-N.J.) focused Monday on GOP attempts to “create a caricature of a human being” and noted that for all of the soft-on-crime attacks, she had the support of law enforcement and victims-rights organizations.
Booker, who gave an emotional speech during the hearings on Jackson’s behalf, said he had heard — particularly from Black women — about the “absurdities of disrespect that we saw Judge Jackson endure.”
“We are going to have our political substantive disagreements, but it was the treatment in some of these questions that triggered a hurt in so many people I know and have encountered,” Booker said. “How could they create these caricatures? How could they create these exaggerations? How could they disrespect a person like her who’s done everything right in her life and in her journey? How qualified do you have to be?”
Monday’s proceedings hit a snag after a delay in the arrival of one Judiciary Committee member, Sen. Alex Padilla (D-Calif.), whose redeye flight from Los Angeles on Sunday night was diverted because of an unrelated medical emergency. Because Democrats needed Padilla’s vote, Durbin recessed the committee meeting shortly after 1 p.m. When Padilla arrived about three hours later, Durbin gaveled the panel back into session and quickly called the vote on Jackson.
While the partisan back-and-forth played out in the hearing room, speculation mounted about the few remaining unknown votes.
Although Romney opposed Jackson’s elevation to the federal appeals court last year, he stressed that he came into this confirmation round with an open mind, and he was being heavily courted by the judge’s supporters. Murkowski, meanwhile, had joined Collins and Graham in backing Jackson for the appeals court seat but similarly indicated she planned to consider her nomination anew.
“What I know is, she will get enough votes to get confirmed. In the end, I suppose, that’s the only thing that matters,” Ron Klain, the White House chief of staff, said on ABC’s “This Week.” “But I wish more Republicans would look at the case here, look at the record and vote to confirm Judge Jackson.”
If Jackson is confirmed as expected, her ascent to the Supreme Court is likely to be a key element of Biden’s legacy, in no small part because he would be installing the first Black woman in the court’s more than two centuries of existence.
The confirmation battle shows how much more partisan Supreme Court nominations have become in recent decades. The late Justice Antonin Scalia, nominated by President Ronald Reagan, was confirmed 98 to 0 in 1986. The late Justice Ruth Bader Ginsburg, nominated by President Bill Clinton, was confirmed 96 to 3 in 1993.