Jurisprudence

Was This the First Day of Ketanji Brown Jackson’s Nomination Fight or the Fifth Year of Brett Kavanaugh’s?

Kennedy points his finger at the nominee.
Sen. John Kennedy speaks during a confirmation hearing for Supreme Court nominee Ketanji Brown Jackson before the Senate Judiciary Committee, March 21, 2022, on Capitol Hill in Washington, DC, on March 21, 2022. J. Scott Applewhite/Getty Images

Late on Monday morning, the Senate Judiciary Committee met for what appeared to be either the first day of Judge Ketanji Brown Jackson’s Supreme Court confirmation hearings, or the fifth year of Justice Brett Kavanaugh’s.

Jackson, a judge on the U.S. Court of Appeals for the District of Columbia Circuit, is the first SCOTUS nominee from a Democratic president since the Kavanaugh confirmation in 2018, which was forced to reconvene in a dramatic second session following a sexual assault allegation against the nominee. In Monday’s opener, consisting of opening remarks from each member of the committee, one Republican senator after another emphasized that they would show Jackson the “respect” Democrats never conferred on Kavanaugh.

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“When we say this is ‘not Kavanaugh,’ what do we mean?” South Carolina Sen. Lindsey Graham, who had the most memorable non-Kavanaugh outburst of the day in that 2018 hearing, said. “It means, Democratic senators are not going to have their windows busted by groups, that’s what it means. It means no Republican senator is going to unleash on you an attack on your character when the hearing is virtually over. None of us, I hope, have been sitting on information about you as a person for weeks or months … never [to] share it with you to allow you to give your side of the story.”

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Jackson’s respectful—but firm!—questioning from Republican senators, Graham said, will make her “the beneficiary of Republicans having their lives turned upside down” during the Kavanaugh hearings.

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“We won’t try to turn this into a spectacle,” Iowa Sen. Chuck Grassley, the current ranking member who chaired the committee in 2018, said at the beginning of his opening remarks.

“Unlike the start to the Kavanaugh hearings,” he continued, “we didn’t have repeated, choreographed interruptions of Chairman Durbin during his opening statements, like Democrats interrupted me for than an hour during my opening statement on the Kavanaugh hearings.”

Nebraska Sen. Ben Sasse referred to that episode as the time when “a bunch of yokels” had to be “arrested and carried from the room.” A confirmation hearing for a lifetime appointment to the nation’s highest court, he insisted, is no time for people to be acting like “jackwagons.”

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Texas Sen. Ted Cruz included a plug for his podcast in his opening remarks. But he, too, promised these hearings would be different from the “circus” of the Kavanaugh confirmation.

“Judge Jackson, I can assure you that your hearing will feature none of that disgraceful behavior,” he said. “No one is going to inquire into your teenage dating habits. No one is going to ask you, with mock severity, ‘do you like beer?’”

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There will be two long days of hearings, on Tuesday and Wednesday, during which we’ll find out how well this Republican pledge to be firm but respectful, contra the alleged tenor of Democrats during the Kavanaugh hearings, holds up.

There are reasons for skepticism. Several Republicans on the Judiciary Committee are considering runs for president, and will be tempted to treat these hearings as star-making turns, as some committee Democrats did in 2018. Consider, for example, Missouri Sen. Josh Hawley, who’s already fired up the QAnon signal by suggesting Jackson has a sympathetic place in her heart for child traffickers. Most Republicans ignored this line of attack, but Sen. Marsha Blackburn also repeated this slur, and Graham himself suggested it was fair game.

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But if these hearings do turn out to be more of an exercise in friendly hand-holding than the Kavanaugh hearings were, there will be a couple of good reasons for that. Neither of them is that Republican senators are just nicer people than their Democratic counterparts.

The first reason Jackson may not get the Kavanaugh treatment is that she has not been credibly accused of sexual assault. It’s incredible that anyone needs reminding, but it was Christine Blasey Ford’s credible allegation that prompted the tension of those hearings, and the outcry from activists. They were looking into much more than “teenage dating habits,” as Cruz termed it.

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Beyond that, Republicans have a political interest in not overplaying their hand. They have a 6-3 advantage on the court now, and they will have a 6-3 advantage on the court if Jackson is confirmed. At the time of Kavanaugh’s hearing shortly before the 2018 midterms, Justice Anthony Kennedy was the swing vote on the court, and Kavanaugh was chosen to lock in a more solid 5-4 advantage. (Since then, Justice Amy Coney Barrett was confirmed in the final weeks of the 2020 election, locking in the conservative supermajority.) Republicans are right that Democrats’ choreographed interruptions of Chairman Grassley to begin the Kavanaugh hearings made for a grating first couple of hours. But when the stakes are bigger, so are the stunts.

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Since Jackson’s appointment wouldn’t change the balance of the court, and Republicans are already riding a tailwind into the midterm elections, their prevailing political concern is to not rock the boat. That doesn’t mean to let her go unchallenged. Republicans will work to secure a couple of talking points that echo their midterm messaging. They will try to show, for example, that Jackson is “soft on criminals,” just like those lousy Democrats who lust for “defunding the police.” Senate Minority Leader Mitch McConnell, meanwhile, has said that in his interview with her, she wouldn’t offer opposition to expanding the Supreme Court. Some Republican senators during opening statements telegraphed this line of attack: Democrats and Justice Jackson are soft on crime and want to pack the court! These confirmation hearings will ultimately be an exercise in engineering talking points, for which a side must settle when they can’t engineer outcomes.

Republicans know they aren’t likely to stop Jackson’s confirmation. They know they are likely to pick up seats in the midterms. Their priority is to not screw up the latter by embarking on a quixotic mission to achieve the former. This political calculation—not some innate goodness they possess that Democrats in 2018 didn’t—will dictate the firm, but respectful balance they hope to strike.

If they can help themselves.

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