The Senate Judiciary Committee concluded Thursday the degrading four-day spectacle of hearings on the nomination of Ketanji Brown Jackson to fill the Supreme Court vacancy created by the announced retirement of Justice Stephen Breyer. Republican senators postured for the cameras and fired rhetorical abuse against Jackson, currently a judge of the D.C. Circuit Court of Appeals, which Democrats made little effort to restrain.
Committee chair Richard Durbin announced that a further meeting would be held March 29, followed by a vote April 4, which would allow the nomination to pass the Senate before the Easter recess. The expectation is that Jackson will be confirmed by the narrowest of majorities, with at most one or two Republicans joining the 50 Democrats; in the event of a tie vote, Vice President Kamala Harris would break the deadlock.
Jackson’s elevation would not change the current balance of the court, replacing one moderate liberal with another, and leaving six arch-conservatives appointed by Republican presidents in control, including the three justices appointed by Donald Trump.
In a hearing room packed with maskless senators, their aides and spectators, the 11 Democrats uniformly welcomed the “historic” nomination of a black female to the high court, praising Jackson’s record, while the 11 Republicans have used the hearings to complain about Democratic mistreatment of prior Republican nominees, to posture about various hot-button right-wing social issues such as gun control, transgender athletes, critical race theory in the schools and abortion.
Much of the Republican attack targeted Jackson for her professional work as a defense attorney, prior to becoming a federal judge, when she represented, among many other defendants, several prisoners held at Guantánamo Bay. The anti-democratic character of this attack is obvious: that prisoners in the “war on terror” should not have legal representation and should be held forever regardless of any evidence against them.
Jackson was also smeared for her sentencing of a number of defendants convicted of accessing and viewing child pornography, although the sentences she handed down were typical of the federal district court system. This avenue of attack was made possible because Jackson, unlike most of the current justices, has actual experience at the trial court level, not just as an appellate judge.
This particularly sordid line of attack by the increasingly fascistic Republican Party, notably by Senators Ted Cruz and Josh Hawley, who harbor presidential ambitions, and Lindsey Graham, who voted to confirm Jackson as an appellate judge just last year, is intended to fuel the paranoid delusions of the adherents of QAnon conspiracy theories.
In the past, the Republicans sought to benefit from these bizarre and groundless claims that leading Democrats are involved in international Satanic child sex trafficking and terrorism, without openly embracing them. Even President Trump once claimed not to know what QAnon was. But now this pretense is largely abandoned, and leading Republicans openly traffic in such charges.
For the American ruling class, Jackson is a known quantity, a well-established defender of the capitalist state. She has been through three earlier Senate confirmations, first when nominated by President Barack Obama to the United States Sentencing Commission, again when he nominated her to the US District Court for Washington D.C., and then in early 2021 when Biden nominated her to replace Merrick Garland on the US Court of Appeals for the District of Columbia, the most important appeals court and a longtime launching pad for Supreme Court nominees.
A graduate of Harvard College and Harvard Law School, a former Supreme Court clerk for Justice Breyer, whom she is set to replace, and a federal judge for almost a decade with almost 600 written opinions, Jackson’s qualifications, from the standpoint of the bourgeois legal system, match or exceed those of all the sitting justices.
Along with the expected liberal and civil-liberties groups, Jackson has garnered support from notable conservative former judges, including the influential J. Michael Luttig, as well as the Fraternal Order of Police and the International Association of Chiefs of Police.
In decades past, such a nomination would have sailed through the Committee and the Senate as a whole—arch-reactionary Antonin Scalia was confirmed unanimously and liberal icon Ruth Bader Ginsburg by a vote of 96-3—but not now, reflecting the deepening crisis of the bourgeois political system in the United States.
The first day ended with Jackson’s anodyne opening statement, praising God, introducing her husband Patrick Jackson, a surgeon she met when both were Harvard students, their daughters, ages 17 and 21, and various members of their extended families, including, as Jackson took pains to point out, a brother in the Baltimore Police Department and an uncle who was formerly Miami’s chief of police.
Days two and three were consumed by “questioning,” alternating between Democrats and Republicans. The former gushed praise for Jackson and tossed her softballs. The latter grilled her on the positions she took representing Guantánamo Bay detainees 15 years ago—Jackson would be the first justice since Thurgood Marshall with significant criminal defense experience—or sentencing decisions she made during her eight years on the federal district court. She would be only the second justice on the current high court with trial court experience.
The stench of identity politics swirled on both sides of the aisle, epitomized by Democrat Cory Booker’s emotional gushing every time he had the floor that the color and gender of the nominee “breaks an artificially confining mold of our past and opens up a more promising, potential-filled future for us all as Americans.”
For most Americans, the first black female Supreme Court justice will have no more benefit than the first black president, who was a ruthless defender of Wall Street and American imperialism. But for those sections of the upper-middle-class seeking to use race and gender to assist their advance up the corporate, academic or political ladder, Jackson is an intoxicating “first.”
On the other side of the ledger, the Republicans, led by Cruz, appeared to be intoxicated as well, but with rage, in part triggered by their inability to block the nomination, in part to boost their support among white supremacists and outright fascists in the Trump “base.” They sought to identify Jackson with “critical race theory,” which she has no record of espousing, and the 1619 Project, which Jackson mentioned once in passing, during a university speech commemorating Martin Luther King Day.
In one of the hearing’s more bizarre moments, Cruz produced blow-ups of pages from Ibram X. Kendi’s children’s book, “Antiracist Baby,” which is apparently among those used at Georgetown Day School, an elite private academy where Jackson and her husband sit on the Board of Trustees. “Do you agree with this book ... that babies are racist?” Cruz asked.
Graham pressed Jackson on the nature and sincerity of her Christian Protestant beliefs, explicitly asking her to rate the degree of her religious devotion on a scale of 1 to 10. Democratic chair Durbin did not stop this open defiance of the separation of church and state, one of the bedrock principles of the Constitution, which bars any “religious test” for public office.
Graham then switched to Guantánamo, where he pushed Jackson into abandoning positions she had expressed in legal filings 15 years ago. She had correctly attacked Bush administration efforts to designate prisoners as “enemy combatants,” hold them indefinitely without due process, and subject them to torture, declaring them violations of both US and international law.
Republican Senator John Cornyn asked Jackson, “Why in the world would you call Secretary of Defense Rumsfeld and George W. Bush war criminals in a legal filing?” Jackson appeared confused, and responded, “I don’t remember that particular reference. I was representing my clients and making arguments. I’d have to take a look at what you meant. I did not intend to disparage the president or the secretary of defense.”
Jackson’s pathetic retreat was clearly not enough for Graham, who argued with Durbin about the 39 remaining Guantánamo Bay prisoners. “The system has failed miserably, and advocates to change the system, like she was advocating, would destroy our ability to protect this country,” Graham said, pointing at Jackson. “I hope they all die in jail,” he added as he stormed out of the hearing room.
Other Republicans raised similar criticisms of Jackson, baiting her on the subject of transgender athletes, and demanding that she give her “definition” of the word “woman.” There were so many interruptions of Jackson’s attempts to answer that Ben Sasse, one of the few Republican senators who voted to impeach Trump, criticized “the jackassery we see around here of people mugging for the cameras.”