Judge Ketanji Brown Jackson Had To Endure The Slings And Arrows Of Disrespectful Fools In Order To Achieve The Greater Good

The New York Times’ legal columnist, Linda Greenhouse, writes How Low Will Senate Republicans Go on Ketanji Brown Jackson?

When Judge Ketanji Brown Jackson’s Supreme Court nomination reaches the Senate floor soon, every Republican who votes against her confirmation will be complicit in the abuse that the Republican members of the Judiciary Committee heaped on her.

Every mischaracterization of Judge Jackson’s record on the bench. Every racist dog whistle about crime. Every QAnon shout-out about rampant child pornography. Every innuendo that a lawyer who represents suspected terrorists supports terrorism.

So far, only one Republican senator, Susan Collins of Maine, has said she will vote to confirm Judge Jackson. The Republican senators who don’t disavow their colleagues’ behavior during last week’s confimation hearing will own it. All of it.

Every Republican voting no will be [Trump fluffer] Lindsey Graham of South Carolina, asking, “On a scale of one to 10, how faithful would you say you are in terms of religion?” Each one will be [Coup Plotter] Ted Cruz of Texas, distorting the argument in a law review note by the nominee to suggest slyly that beginning as a student she harbored an agenda of going easy on sex criminals.

Each Republican will even sink so low as to be Marsha Blackburn of Tennessee, moving her pen across the page as she read the right-wing talking points and demanding that the nominee define the word “woman.” The definition that came to mind, although not to Judge Jackson’s lips, was “a mature female who can maintain her composure while being badgered on national television by posturing politicians.”

I have observed, and written about for this newspaper, every Supreme Court confirmation hearing since Sandra Day O’Connor’s in 1981, the first to be televised live. There have been good times and bad, obviously. The O’Connor hearing was one of the good ones. There were a few testy moments, thanks not to Democrats but to a few of the nominee’s fellow Republicans who thought her insufficiently dedicated to the anti-abortion cause. But the mood was decidedly one of bipartisan celebration for the barrier about to be broken by confirming the first woman to become a Supreme Court justice, and the vote on the Senate floor was 99-0.

Senator Amy Klobuchar, Democrat of Minnesota, tried in her opening statement last week to summon such a sense of unity. “This entire hearing is about opening things up,” she said, noting that as the 116th justice, Judge Jackson would be the first Black woman. Senator Klobuchar continued, “We are a nation that must re-embrace the simple principle that unites us as Americans, and that is that our country is so much bigger in what unites us than what divides us.”

It was not only sad but also shameful that the Judiciary Committee’s Republicans couldn’t rise to the occasion. Granted, the goal of their leader, Senator Mitch McConnell of Kentucky, has always famously been to withhold as many votes as possible from a Democratic president’s Supreme Court nominee. (In 2016, of course, he deprived President Barack Obama’s nominee, Merrick Garland, of any vote whatsoever.)

UPDATE: Evil Incarnate: McConnell Leans on GOP Senators to Oppose Ketanji Brown Jackson’s Confirmation.

The last Democratic nominee to go through a full confirmation process was Elena Kagan in 2010. Named by Mr. Obama, she had been the first female dean of Harvard Law School and was serving as the first female solicitor general. She was nominated to succeed Justice John Paul Stevens, who at that point was arguably the most liberal justice. The court’s ideological balance was not at stake; in fact, there was some reason to think that she might be a bit to Justice Stevens’s right. There was no objective reason to oppose her. She was confirmed with only five Republican votes, down from the nine Republicans who voted to confirm Sonia Sotomayor, Mr. Obama’s first nominee to the court, the year before.

The reasons Republicans gave for opposing Solicitor General Kagan were standard fare. They portrayed her as a closet political activist who, in the words of Senator Charles Grassley of Iowa, had failed to provide assurance that she would “change her political ways or check her political instincts or goals at the courthouse door.” One of her home-state senators, Scott Brown, Republican of Massachusetts, who had introduced her at the committee hearing and was widely expected to vote for her, voted no at the last minute, having apparently discovered that she lacked judicial experience.

While the opposition was tedious and vapid, it wasn’t mean. No one accused her of coddling pedophiles or terrorists. The senators were following their leader. It was “just business.”

The difference between then and now is stark. The alternating question periods between Democratic and Republican senators induced a kind of whiplash. While the Democrats celebrated Judge Jackson’s accomplishments and the symbolism of her nomination, the Republicans oozed venom. Their collective fixation on her irrefutably mainstream sentencing practices in cases involving child sexual abuse imagery — a topic seemingly plucked from thin air because there was nothing of substance for them to complain about — verged on the unhinged. [The Qanon conspiracy cult has only been around since 2017.]

“Every judge who does what you are doing is making it easier for the children to be exploited,” Senator Graham exclaimed, evidently overcome with remorse for having voted less than a year ago to confirm her to the federal appeals court on which she now sits [and for the federal district court before that.]

Fact Check: Critics of Jackson’s Child Sex Abuse Sentences Backed Judges With Similar Records:

[A]ll of the Republican critics had previously voted to confirm judges who had given out prison terms below prosecutor recommendations, the very bar they accused Judge Jackson of failing to clear.

Just 30 percent of offenders who possessed or shared images of child sex abuse received a sentence within the range suggested by nonbinding federal guidelines in the 2019 fiscal year, and 59 percent received a sentence below the guideline range. And in general, it is not uncommon for judges to impose shorter sentences than what prosecutors have recommended.

[Mr.] Hawley, Mr. Graham, Mr. Cotton and Mr. Cruz all voted to confirm judges nominated by President Donald J. Trump to appeals courts even though those nominees had given out sentences lighter than prosecutor recommendations in cases involving images of child sex abuse. Mr. Graham had also voted to confirm Judge Jackson to the U.S. Court of Appeals for the District of Columbia Circuit in 2021 in spite of the sentencing decisions she had made as a district judge.

In 2017, Judge Ralph R. Erickson was confirmed by a 95-to-1 vote to the U.S. Court of Appeals for the Eighth Circuit, with Mr. Cotton, Mr. Cruz and Mr. Graham voting in the affirmative. (Mr. Hawley was not yet a senator.) While serving as a district court judge in North Dakota, Judge Erickson imposed sentences shorter than the prosecutor’s recommendations in nine cases involving child sex abuse imagery from 2009 to 2017, averaging 19 percent lower.

Judge Amy J. St. Eve was confirmed by a 91-to-0 vote in 2018 to the U.S. Court of Appeals for the Seventh Circuit. While serving as a district court judge in Illinois, Judge St. Eve imposed lighter sentences than prosecutor recommendations in two such cases. In United States v. Conrad, she sentenced a man who transported images of child sexual abuse to 198 months, 45 percent less than the prosecutor’s recommendation of 360 months.

All four Republican senators voted to confirm Judge Joseph F. Bianco to the U.S. Court of Appeals for the Second Circuit in 2019. Previously, as a district court judge in New York, Judge Bianco sentenced three defendants to prison terms shorter than what prosecutors had sought.

Most recently, Mr. Cotton, Mr. Cruz and Mr. Hawley voted to confirm Judge Andrew L. Brasher to the U.S. Court of Appeals for the 11th Circuit in 2020. (Mr. Graham was not present for the vote.) As a district court judge in Alabama, Judge Brasher had sentenced a defendant to 84 months in prison, below the prosecutor recommendation of 170 months.

It was inevitable that some Republican would bring up the mother of all confirmation battles, the defeat of President Ronald Reagan’s nomination of Judge Robert Bork in 1987. It turned out to be Senator Cruz. “It is only one side of the aisle, the Democratic aisle, that went so into the gutter with Judge Robert Bork that they invented a new verb, to ‘bork’ someone,” he said.

If Senator Cruz meant to justify himself and his fellow Republicans for “borking” Judge Jackson, he missed a crucial difference. In 1987, six Republicans joined with all but two Democrats to reject the Bork nomination for what the nominee had said and written. Judge Bork actually criticized a key measure of the Civil Rights Act of 1964, which he said embodied a principle of “unsurpassed ugliness.” He really did believe that the First Amendment protected only pure political speech and not other means of expression. He called the Supreme Court’s 1965 decision in Griswold v. Connecticut, which recognized a constitutional right to contraception, an “unprincipled” judicial overreach. That he would vote to repudiate Roe v. Wade when the opportunity arose was a given.

And Let’s never forget that Bork was the corrupt DOJ Lawyer Richard Nixon got to carry out his Saturday Night Massacre during Watergate. He got what he richly deserved. “On October 20, 1973, in an unprecedented show of executive power, Richard Nixon ordered Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus to fire Cox, but both men refused and resigned their posts in protest. The role of attorney general then fell to Solicitor General Robert Bork, who complied with Nixon’s request and dismissed Cox. Less than a half hour later, the White House dispatched FBI agents to close off the offices of the Special Prosecutor, Attorney General and Deputy Attorney General.”

In other words, the Bork hearing was really about Robert Bork and what impact he would have on the Supreme Court if confirmed to what was then the swing seat. The Republicans’ role in the Jackson hearing was not remotely about Ketanji Brown Jackson. It was about concocting a scary version of a Black woman to serve up to their base. In addition to associating her with crime and criminals, they repeatedly questioned her representation of Guantánamo detainees.

They created a fictional character, like Tyler Perry’s Madea (who is at least laugh-out-loud funny, IMHO). From Diary of a Mad Black Woman.

Judge Ketanji Brown had to sit there and take it from these racist crackers for the greater good of being confirmed to the Supreme Court. Americans deserved to be able to see her go all Madea on their cracker asses: “What did you just say to me? Oh, hell no, you don’t get to be disrepecting me!” Most Americans would have stood up and cheered. In fact, the Republican antics have backfired on them. Americans strongly disapprove of GOP pushback on Ketanji Brown Jackson.

But MAGA/QAnon White Nationalist Republicans would have dismissed her as an “angry black woman.” It’s the same racist trope they pulled on Barack and Michelle Obama. (According to HuffPost, on a June 6, 2008 episode of Fox News’ “America’s Pulse”, host E.D. Hill questioned whether a fist bump Obama shared with his wife Michelle Obama was a “terrorist fist jab.”) It’s why Obama always had to be “no drama Obama.” It was comedian Keegan Michael-Key who had to be Luther, Obama’s Anger Translator.

Memories are short and selective. April 7 will be the fifth anniversary of the Senate’s confirmation of Justice Neil Gorsuch. Before he became a judge, he held a senior political position in the Justice Department during the presidency of George W. Bush. In that position, in 2006, he sent an email to a friend with the subject line “Elite Law Firm Pro Bono Work for Terrorists.” His email forwarded a blog post from the right-wing American Spectator deploring the growing involvement of prominent law firms in providing representation to Guantánamo detainees. His message read: “I thought you mind [sic] find this of interest. It seems odd to me that more hasn’t been made of this. See esp. list of firms below from Spectator blog.”

His friend, whose name had been blacked out, replied to the email by saying, “The great fallacy here, of course, is that this work helps to protect the rights of Americans. By definition, the only rights at issue here are those of suspected alien terrorist enemies during time of war.” Mr. Gorsuch’s reply in turn: “Exactly.”

The email exchange was among the documents the White House turned over to the Judiciary Committee at the time of the Gorsuch Supreme Court nomination. During the confirmation hearing, Senator Dick Durbin, the Illinois Democrat who now heads the committee, asked him about it, noting that Chief Justice John Roberts had spoken proudly about his own representation of unpopular clients during his legal career.

Senator Durbin’s question penetrated, just for a moment, the nominee’s cool demeanor. “The email you’re referring to is not my finest moment, blowing off steam with a friend, privately,” he replied. “The truth is, I think my career is better than that.”

Whether it has proved to be, whether the hotheaded administration lawyer has subsequently redeemed himself, is a judgment I’ll leave to others for now. [He lied at his confirmation hearing. He has emerged as a radical Republican extremist on the court.]  But here’s a judgment I can make with confidence: If and when Senators Cruz, Graham and the rest of them seek redemption for their behavior last week, they won’t find it.

Amen to that.