Republicans on the Senate Judiciary Committee, united in their opposition to Supreme Court nominee Ketanji Brown Jackson, could not stop the federal circuit court judge from moving a step closer Monday to becoming the first Black female member and President Joe Biden’s first successful nominee to the high court.
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But they also made it clear that this might well be Biden’s last chance to pick who he wants for the Supreme Court, should another opening occur during his term.
“If we get back the Senate and we’re in charge of this body … if we were in charge, she would not have been before this committee,” Sen. Lindsey Graham, South Carolina Republican, said before the panel split along party lines, 11-11, on Jackson’s nomination. Later, the Senate voted – with three GOP ayes – to move onto debate for full Senate confirmation.
“The process you started, to go to a simple majority vote, is going to rear its head pretty soon,” he added. “When we’re in charge, we’re going to talk about judges differently.”
Graham was referring to earlier moves by Democrats to eliminate the filibuster for non-Supreme Court judicial nominees. It was Republicans, however, who eliminated the filibuster for Supreme Court picks.
The Senate is now divided 50-50, with Vice President Kamala Harris serving as a tie-breaker. Democrats face a daunting political landscape in this fall’s midterm elections, however, so if another Supreme Court opening occurs during Biden’s term, he may have to convince a GOP-controlled Senate.
Jackson on Monday evening won the votes of three GOP senators – Susan Collins of Maine, Mitt Romney of Utah and Lisa Murkoswki of Alaska – who joined Democrats to take the confirmation battle to the full Senate. Collins already announced she would back Jackson when the final vote comes up later this week, and Murkowski and Romney said in statements Monday that they would vote to confirm Jackson, as well.
That virtually assures that Jackson will become Biden’s first confirmed member of the Supreme Court and the court’s first Black female justice.
And as brutal as the Jackson hearings got, Democrats worried that the process is starting to infect the integrity of the court itself, as nominees are portrayed as being in one camp or the other.
“Proud as I am on this day, I am also sad that we’re seeing this partisan divide in this committee and in this Congress on this extraordinarily qualified nominee,” said Sen. Richard Blumenthal, Connecticut Democrat.
“If we treat the Supreme Court like another political branch, it will become one,” he added. “It is a self-fulfilling prophecy and right now, we are fulfilling it.”
Monday’s vote was preceded by a fierce display of grievances between Democrats and Republicans on the committee – not all of which actually had to do with Jackson herself.
Republicans – many of whom lauded Jackson’s character, family and qualifications as a jurist – complained that Democrats had treated very badly nominees put forth by Republican presidents, putting now-Justices Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett through grueling nomination proceedings. That led Democrats in turn to note that Republicans wouldn’t even schedule a hearing or a meet-and-greet with Merrick Garland, a nominee of former President Barack Obama who is now Biden’s attorney general.
They argued obliquely about race, with Democrats noting the historic nature of her nomination and Republicans – a caucus that is almost entirely white and overwhelmingly male – poised to vote against putting the first Black female on the court.
Republicans countered that Democrats had a shot at putting a Black woman on the court during the George W. Bush administration, when he nominated Janice Rogers Brown to a federal judgeship. Democrats initially threatened to filibuster her, but after an agreement between the two parties, her nomination was allowed to proceed and she was confirmed, 56-43, in 2005.
Brown was never nominated to the Supreme Court, however.
The GOP members of the panel also claimed Jackson would become an extremist on the high court and someone who would favor criminal defendants over the rule of law – a contention hotly contested by Democrats.
“Judge Jackson may be a fine woman, but she has built her career as a far-left activist,” said Sen. Tom Cotton, Arkansas Republican. “That didn’t change when she put on a black robe.” Jackson “remains more of a defense attorney for criminals,” Cotton said of the judge who would become the first former public defender to serve on the Supreme Court.
“If you are a criminal, you are lucky if your case was assigned to Judge Jackson,” he added.
Sen. Ted Cruz, Texas Republican, said he has “known Judge Jackson for 30 years and always liked her personally.” But should she be confirmed as expected, Cruz predicted, Jackson would rule against gun ownership, school choice and a host of other social issues beloved by conservatives.
“I believe she will prove to be the most extreme and the furthest left justice ever to serve on the United States Supreme Court,” Cruz said.
Sen. Josh Hawley said his opposition to Jackson was “not based on her character or her integrity or her accomplishments. I think those things are beyond question,” the Missouri Republican said. “It’s based on her policy and her philosophy.”
Democrats, point by point, rejected their Republican colleagues’ charges that Jackson was soft on crime, displaying statistics showing Jackson’s sentences were not out of the norm, compared even to judges appointed by former President Donald Trump.
The attack on Jackson “has been withering, even abusive,” said Sen. Chris Coons, Delaware Democrat. “Judge Jackson is not far, far from the mainstream.”
Addressing GOP complaints that Jackson said she had no judicial philosophy, Sen. Amy Klobuchar, Minnesota Democrat, noted that Supreme Court Chief Justice John Roberts, appointed by President George W. Bush, said much the same thing during his own confirmation hearings.
And Senate Judiciary Committee Chairman Dick Durbin pushed back on his GOP colleagues’ accusations that the Democratic leadership withheld information about Jackson’s pre-sentencing reports – documents he said the committee has never requested for other nominees.
“I think they went too far,” the Illinois Democrat said of some of the Republicans on the committee. “And I think some of the things said about this judge don’t reflect who she is and what she has accomplished in her life.”
The 11-11 tie means Jackson’s fate goes to the full Senate, where Democratic majority Leader Chuck Schumer of New York will put a measure on the floor discharging her nomination to the floor. So far, Sen. Susan Collins of Maine is the only announced GOP “yes” to Jackson’s nomination.
A final vote is expected Thursday or Friday.
“Let’s put partisanship and pettiness aside and realize we are in the midst of an historic moment,” said Sen. Patrick Leahy, Vermont Democrat and the longest serving member of the Judiciary Committee. “The history books will be taking notes. … The only question we have is whether we rise to meet this moment in history.”
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