Jurisprudence

Democrats Are Missing Their Shot at the KBJ Confirmation Hearings

Judge Ketanji Brown Jackson smiles broadly and raises her right hand as she takes the oath.
Judge Ketanji Brown Jackson is sworn in at her Senate Judiciary Committee confirmation hearing on Monday. Saul Loeb/Getty Images

Despite the history-making nature of her nomination, there is some big Back to the Future energy at work during this week’s Supreme Court confirmation hearings for Judge Ketanji Brown Jackson. Republicans who command a 6–3 supermajority on the current Supreme Court—a ratio that will be wholly unaffected by this week’s proceedings—chose to spend much of Monday’s opening day of hearings howling in outrage about all the ways they have suffered at the hands of Democrats. As a result, they spent the morning relitigating the insults heaped upon Miguel Estrada, Robert Bork, Clarence Thomas, Janice Rogers Brown, Amy Coney Barrett, and of course Brett Kavanaugh. Many of the GOP senators’ opening statements were focused specifically on Kavanaugh, whose alleged misconduct was depicted by Sen. Ted Cruz this morning in terms of “teenage dating habits”—as if his most egregious alleged high school sin lay in asking Jennifer to the prom instead of Susie. It should go without saying that Kavanaugh was credibly accused of sexual assault, which has nothing to do with “dating,” but nobody on either side seemed to even tacitly acknowledge that distinction on Monday.

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But it’s not just that Republicans largely spent the morning meandering aimlessly through the fog of outrages past. The most outrageous points of attack on Jackson included Sen. Josh Hawley’s insinuation that she is soft on child sex abusers—a charge that has now been roundly debunked, even on the right, as wrongheaded and “meritless to the point of demagoguery.” So for obvious reasons, these Republican senators find themselves back sipping at the ancient well of “judicial philosophy.” And as though nothing has changed since Robert Bork left the building, this line of criticism gets rooted, again, in tired speeches about things like “originalism versus living constitutionalism.” It’s not just that this “debate,” insofar as it was briefly interesting in the 1980s, is now analytically useless—like announcing whether you’re a Monica or a Rachel on the set of Ted Lasso—but also there are no “originalists” left on the court, not really, and the last “living constitutionalist” has been gone for decades.

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The conservative legal movement has hopscotched joyously of late, toggling between originalism and textualism as they suits its ends, but also toward complete abandonment of both, with a new interest in “common good constitutionalism” joining the party. When members of the Judiciary Committee browbeat Jackson for refusing to state her “judicial philosophy” or for her inability to reduce it to a four-second TikTok video, what they are attempting to do is lay claim to a debate that has long outlived its descriptive utility, and a debate that covers up the hypocrisy of a court which is more purposefully ends-oriented than any in modern history.

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Which leads us to the Democrats, who on Monday did an able job of noting that Jackson’s nomination is historic and that her family should be proud, but a dismal job of defining anything akin to a progressive legal philosophy. (Pro tip: “Recognizing regular people” is no more a coherent judicial philosophy than is “originalism.”) Democrats seem to have all but given up on the larger project of using these confirmation hearings to make any salient argument about the importance of the court, even in a midterm election year, and even in a midterm election year in which Democrats stand poised to lose the Senate, and even, somehow, in a midterm election year in which the Supreme Court looks ready to reverse Roe v. Wade, has already reversed it in Texas, and stands ready to allow guns in New York subways and to dismantle the Environmental Protection Agency.

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I mean, a reasonable person watching today’s opening statements from the Senate might not only reasonably conclude that it’s still 1985, but also that the hottest issue on the current Supreme Court’s docket is … nothing. Once the nominee is being questioned, there will be little opportunity to make the case for what has happened to the Supreme Court in under a decade, or why it matters, or how that will affect actual people. Monday would have been the day to advance an idea, the sketch of an idea, a filmy elevator pitch of an idea about progressive judging that isn’t “made up from whole cloth,” as we’re advised by Republican senators, but also a structural theory of the role courts play in a democracy that seems to be in peril.

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Credit where it is due, then, that the single most persuasive advocate for what it is that the law should and could actually do came from the nominee herself, who in her own introductory remarks quoted Justice Stephen Breyer’s theory of constitutional law from his own confirmation hearings. As she put it this afternoon:

On the day of his Supreme Court nomination, Justice Breyer said: “What is Law supposed to do, seen as a whole? It is supposed to allow all people—all people—to live together in a society, where they have so many different views, so many different needs, to live together in a way that is more harmonious, that is better, so that they can work productively together.”

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As Jackson then went on to explain, if confirmed she would “work productively to support and defend the Constitution and the grand experiment of American democracy that has endured over these past 246 years.” That’s it. This is a progressive judicial philosophy shorn of the fearmongering from Sen. Tom Cotton about American carnage; or of Sen. Marsha Blackburn’s Fox News bingo card of the aggregated marauding forces of critical race theory, transgender athletes, and child predators; or of Sen. Lindsey Graham’s pouting that the president didn’t pick the nominee he wanted. Instead, Jackson proffered a theory of the case: The law needs to allow heterogeneous people to live and work productively together toward a more harmonious whole.

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That works. It should be played on a loop as the current court works ever harder to make living together peaceably, by voting and learning and coexisting, an elusive dream. And it should be played on a loop tonight next to the noxious QAnon sound bites about how lovely Jackson’s children are, even though she loves child sex offenders. Senate Republicans have set the tone for three more days of hearings in which we use threadbare legal concepts to fight over decades-old slights. The nominee offered living proof not just of the promise of moving forward, but a theory of how to get there: with generosity of spirit, gratitude for newly realized opportunity, and a chance to allow ever more diverse people to gain access to a system of law in which to work, live, and thrive.

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