Jurisprudence

What We Learned From Four Days of Smears Against Ketanji Brown Jackson

Judge Ketanji Brown Jackson testifies on her nomination to become an Associate Justice of the US Supreme Court, during the third day of a Senate Judiciary Committee confirmation hearing on Capitol Hill in Washington, DC, March 23, 2022.
Judge Ketanji Brown Jackson testifies on her nomination to become an Associate Justice of the US Supreme Court, during the third day of a Senate Judiciary Committee confirmation hearing. Saul Loeb/AFP via Getty Images

Mark Joseph Stern: Hi everyone! We have just emerged from four days of confirmation hearings for Ketanji Brown Jackson. My first big question for everyone is, I guess, still the most important one: Do you think she’ll be confirmed?!

Dahlia Lithwick: I guess Sen. Joe Manchin spoke for us all when he brushed off the circus-ness with: “It’s Hawley, right? Take that for what it’s worth.”

Jeremy Stahl: Yes, I think the bigger question is how many Republican votes she’ll get. Last year when she was elevated to the D.C. Circuit Court of Appeals, Judge Jackson received 53 votes with every Democrat voting yes and three Republicans—Sens. Lindsey Graham, Lisa Murkowski, and Susan Collins —joining. Forty-four Republicans voted no and three abstained.. Graham has shown over the course of these hearings that he’s a no, so the rest are the ones that are up in the air, I suppose.

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Mark:  I wonder if Kamala Harris is secretly hoping the Senate deadlocks 50-50 so she gets to break the tie and be relevant for a day.

Christina Cauterucci: I can’t decide if it’s a sad thing or a fine and good thing that no one’s mind will have been reasonably changed by these hearings.

Dahlia: Christina, I actually think the sexism makes it harder for Murkowski and Collins…. I think being associated with Graham literally SCREAMING at the nominee as she tried to get a word in makes it tougher for them to flip

Christina: That’s a good point! On the other hand, Maine voters didn’t seem to care that Collins aligned with Kavanaugh’s sexism and screaming.

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Jim Newell: While we’ll have to see some post-hearing polling, I suspect this did polarize the nomination a bit more. Her support was 58-30 ahead of the hearings, per Gallup, and enough dirt was kicked up around GOP base issues to drive up Republican opposition. I think she gets three GOP votes max: Collins most likely, Murkowski on the fence, and then one wild card like Mitt Romney, Roy Blunt or Jones Portman. But maybe just one. Or none!

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Jeremy: I wonder if Sen. Ben Sasse is in play. He abstained from her vote last year.

Dahlia: He definitely put acres and acres between himself and the “jackassery” didn’t he?

Jeremy: And his performance on the committee indicated there’s at least a chance he could vote “yes,” even as I know he’s been fairly party line in the past on judicial questions.

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Mark: Sasse loves to condemn the “jackassery” of his fellow Republican senators then vote in lockstep with them, though.

Dahlia: So much depends on how tightly the party lashes itself to the “QAnon Sex Predator” narrative. It seems like the more people were willing to embrace it the more difficult it became for Sasse and the Sasse-like?

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Jeremy: Yes, in addition to calling out his colleagues for “jackassery,” he refused to join the letter that was signed by every other Republican member of the committee requesting pre-sentencing documents that would put the private information of victims of child pornography at risk. I guess that and his softballs and him not having voted against her last time has me daring to dream.

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Jim: His argument against signing that letter, though, was that he wants this to be about “judicial philosophy.” And he probably still thinks her judicial philosophy stinks!

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Dahlia: Methodology is the new philosophy, Jim!

Mark: A great segue to my next question … To the extent she was able to get a word in, how much do you think KBJ revealed about her jurisprudence? Does anyone feel like we know more about how she’ll serve as a justice now than we did on Monday morning?

Jeremy: I think she showed an unimaginable amount of strength in the face of some terrible circumstances and that makes me feel better about her ability to join Sonia Sotomayor as a fighter on the court. That’s not really judicial philosophy, but I think it was the most revealing thing.

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Christina: I’m no lawyer, though like Sen. Thom Tillis I do watch Law & Order from time to time,  but what I saw was mostly evading specific questions about her judicial philosophy, which was probably the right move (and seems to be standard practice at these sorts of things).

Dahlia: We know very little right? But I’m more persuaded by those studies suggesting she will be generally Breyerish or slightly to the right of Breyer. But I also think she genuinely hasn’t spent a lot of years devising a comprehensive and fully realized approach to non-statutory issues. And I think that means she may change a lot in a lot of ways over the coming years

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Jim: Yeah, I have no idea. Sen. John Cornyn at one point rued how SCOTUS nominees on both sides are “overcoached” not to give much away. That’s the correct way to get through one of these hearings politically, but it makes it that we don’t learn a whole lot.

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Christina: Mark, do you think her nods to textualism were a strategy to get support from the right, or a genuine interest in the Scalia mode?

Mark: I think her rhetoric in support of originalism and textualism was basically sincere but also canny and calculated. She repeatedly noted that the Supreme Court itself has described these methodologies as “The One True Way.” She didn’t really stick her neck out by acknowledging that they’re the default mode of interpretation, and those comments drew a lot of praise from conservatives, who seem to think they prove the victory of Scalia-ism over progressive constitutionalism. But the truth is that today, every judge relies on originalism and textualism sometimes—the question is when and how they apply these theories. I’m sure KBJ will draw on originalism in, say, Confrontation Clause cases, where it points the way to a liberal outcome. On marriage equality and abortion? Not so much. I was curious if her rhetoric about originalism made any of you think, “huh, maybe she really is a centrist”?

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Jeremy: She didn’t give them enough on that front last time, which was the Republicans’ main line of attack against her—that she was anti-originalist, or some such—in the previous hearing and was all they really had until they went full QAnon Shaman in this hearing. So maybe it was more of a tactic than anything else, a lesson from the appellate confirmation process. Hard to say.

Christina: Yeah, I certainly don’t think she’s going to arrive on the court bent on striking down all the unenumerated rights you and I enjoy, Mark.

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Jeremy: Overall, I just leave with this impression of being super impressed with this person and super grateful she’s going to be on the court, to be honest.

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Dahlia: Overall I just leave with the sense that I want to know what’s happening with Justice Clarence Thomas. Justice Thomas went into the hospital last Friday and last Thursday Hawley decided the otherwise acceptable nominee endangers all our children?

Jeremy: Yeah, Sen. Mitch McConnell was telegraphing a light-touch treatment before the start of this and by the end of the week nearly every GOP member of that committee was on board with the “won’t somebody think of the children narrative,” which was odd given that Judge Jackson’s elevation won’t change the makeup of a court they dominate.

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Jim: That oppo was floating around the Judiciary and outside Republican groups days earlier. Someone was going to run with it! Hawley was just the 2024 presidential hopeful who tweeted first.

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Jeremy: I thought they’d go with kid gloves treatment before this started—because it seemed the smarter strategy given the low stakes on a 6-3 court—and I was very wrong, but there could be a ton of reasons for that.

Dahlia: I am happy to be wrong but it felt like there was a big “Biden isn’t seating two nominees before the midterms” vibe that gathered and spiraled out.

Christina: I think the GOP’s outrage was all an act. They need to keep voters convinced that the country is under attack and in constant fear that their way of life and their literal children are being taken away from them. It doesn’t work if everyone on the right feels like they’re winning.

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Dahlia: These guys will argue they are just about to lose the court even when all 97 Justices are Federalist Society guys. That’s their message

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Jeremy: If something were to happen and there were to be another nominee before the midterm, they could point to the contentiousness (which they alone caused) of this process and argue that there’s been enough controversial confirmations this year.

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Switching gears a bit, Dahlia, you’ve written beautifully about how Senate Democrats let their nominee down by not defending her from Lindsey Graham’s grievances and the rest of the mob. Others have said that this was the best approach to avoid the media narrative being “KBJ + child porn sentences = bad?” I wonder if you would respond to that argument that they needed to be defensive on this issue and just get the nominee through? Also, Jim, I’m curious who you think comes out better from the Hawley-themed circus if and when this has resonance in the upcoming midterm elections?

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Dahlia: Yeah, folks have been asking me all day what Dems fighting for Judge Jackson would have looked like. Certainly not hollering and insults. But it just felt like they were watching a mugging and telling the victim she was brave and had a beautiful family, right?

My sense is unchanged: Talk about systems. Explain how the current court is broken, explain why unenumerated rights matter, explain a theory of progressive jurisprudence that isn’t all jazz hands. I guess I don’t understand why boiling vitriol is met with “hmmmmmm, nice shoes Judge.”

Jim: I don’t know if this process will have any resonance in the midterms and will be forgotten pretty soon, especially if the court overturns a certain precedent later this term and the discussion moves to that!

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Before we leave Graham entirely, though, A THEORY. I think he’s the engineer of this ugly process more than Hawley or Cruz or whatever. By pushing for J. Michelle Childs so hard, any non-Childs pick became “the left’s pick,” and the partisan sorting we saw play out in bogus smears about how she has a soft spot for child pornographers all flowed from that.

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Mark: I absolutely believe that.

Dahlia: Does that explain why he went from Day 1: “I Deputize Hawley to Probe This” to Day 3: “Special Victims Unit”?

Jim: I think Graham wanted to maximize the pain on Democrats when he didn’t get his pick, and he let Hawley test it and then decided to jump in later.

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Mark: One last question before we memory-hole much of this past week to preserve our own sanity. How much do you think KBJ’s identity as a Black woman influenced Republicans’ decision to seize upon Critical Race Theory and child predation as their main lines of attack? If the nominee were a white dude with the exact same record, would they have picked the same arguments?

Christina: Would KBJ have been abused as viciously if she were a white man? The short and obvious answer is: absolutely not. But the right is great at shoehorning their current obsessions into whatever shape the debate takes and whoever the target has to be. If the nominee were a white man, the narrative would be that he was a puppet of the gender-liberated, racist-against-white people, child-abusing left. Like Biden.

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Jim: Agree, Christina. Anti-CRT and “wokeness” are GOP campaign themes and they would have tried to tie in any nominee to those themes. On the other hand, certain digital graphics were not subtle.

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Mark: And yet, to bring it back to where we started, she still appears to have the votes for confirmation. And it seems that, for many Democratic senators—included those who stranded her at the hearing—that’s all that matters. The memory of racist babies will fade away, but Justice Jackson will remain on the bench.

Dahlia: I slightly disagree. I think the impressions created at these hearings endure for decades, fact based or not. I think one of the reasons I was so bummed is that this QAnon “our kids are all unsafe” crap can stick to the bottom of her shoe for a lifetime and that is part of the noxiousness of it.

Christina: I can very easily visualize the GOP’s failed attempt to view the pre-sentencing documents sticking around as a QAnon—and, thus, mainstream GOP—fixation. “What were in those papers? What is Justice Jackson hiding?” Will that smear erode our democratic systems and the legitimacy of the judiciary any quicker, or in any materially different way than any other smear they might have leveled at a different nominee? I don’t know.

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