Thankfully, Judge Ketanji Brown Jackson’s confirmation was relatively low key compared to recent Supreme Court confirmations. Except for the demagoguery and grandstanding of three of the Senate’s most noxious members (Hawley, Cruz, and Graham), it could almost be described as civil. Nonetheless, it ended with the usual outcome of late: an overwhelmingly partisan vote. No Republican senator supported Judge Jackson in committee and only three Republicans voted to confirm her.
Thus, the last best (albeit slim) chance to restore some minimal integrity to the Senate judicial confirmation process was lost. With a few striking exceptions (Bork, Thomas), Supreme Court confirmations were until recent decades generally bipartisan exercises focused largely on the merits of the nominees. The consensus standard was that presidential nominees were entitled to confirmation if they possessed the requisite substantive skills, their judicial philosophy was within the legal mainstream, and they were ethically and temperamentally fit. Under this standard, nominees as ideologically diverse as Justices Scalia and Ginsburg were confirmed by overwhelming bipartisan votes.
Clearly, Judge Jackson likewise would have received broad bipartisan support if this merit-based standard applied. Even many of her opponents conceded that she was well qualified substantively and personally. Thanks to the concerted efforts of both political parties, however, Senate judicial confirmations have steadily descended into hyper-partisan farce: politics is everything, the nominee’s merits are essentially irrelevant, and virtually nothing said by any senator is worth taking seriously. The last nominee to receive significant bipartisan support was Justice Kagan, who was confirmed by a vote of 63-37 in 2010.
Judge Jackson’s nomination offered at least a chance to reverse this trend. There was no persuasive basis to oppose her on the merits. (Objections to some of her sentencing decisions were exaggerated if not disingenuous; criticisms of her very few past opinions hardly amounted to grounds to oppose her.) No one questioned her personal integrity. There was no major process issue lurking in the background—e.g., Republican treatment of the Garland nomination, the timing of Justice Barrett’s nomination and confirmation. (Biden was criticized for limiting his choice to a Black woman but little was made of that at Judge Jackson’s confirmation.)
Most notably in the current climate, there was little at stake from a partisan/ideological perspective. Her confirmation presumably will result in replacing one “liberal” justice with another, while “conservatives” remain in control of the Court. Indeed, one astute pundit observed that politicizing the Jackson confirmation actually was a short-sighted and politically foolish thing for Republicans to do. But they apparently couldn’t help themselves; superficial politics as usual easily prevailed over substance and the public interest at the end of the day.
Many Republican senators who voted against Judge Jackson are probably hopeless partisans, as are many Democrats who reflexively oppose nominees of Republican presidents. What’s most disappointing, however, is that senators who sometimes appear to be at least a little open-minded and thoughtful ultimately went along with their crowd. This was true even for some (e.g., Portman and Toomy), who are leaving the Senate and have no reason to fear political retribution.
Another example is Ben Sasse, who is not leaving the Senate but often comes across as more than a craven partisan. His statement explaining his vote against Judge Jackson strained to have it both ways. He began by extolling her as an “extraordinary person” with “impeccable credentials and a deep knowledge of the law” and ended by wishing her the best as she takes her seat on the Court. In between, however, he complained that she did not sufficiently articulate her judicial philosophy and he criticized two of her decisions as a district court judge.
Sasse’s statement acknowledged that “the Supreme Court confirmation process is broken and doesn’t build trust in either the Senate or the Supreme Court.” Unfortunately, he declined to take one simple step to restore its credibility: embrace the former standard of basing confirmation decisions on merit. Specifically, he could have retained the opening and closing portions of his statement but revised the middle along the following lines:
“I am not confident that Judge Jackson will decide cases according to my preferred methodologies and I disagree with two of her past decisions. However, I do not question her personal and professional qualifications. While I would not have picked her, elections have consequences and she is certainly a reasonable choice by President Biden. Therefore, she has my vote.”
If just a handful of senators in each party had the political will and concern for the public interest to take this simple step, they could do tremendous good. Sadly, they couldn’t muster the courage to do so in this instance and a better opportunity is unlikely to arise any time soon.