Senate Republicans — who know they probably won’t be able to prevent Ketanji Brown Jackson from being confirmed to the Supreme Court — opened her confirmation hearing by focusing on something else: old grievances.
Several Republicans, including Sens. Lindsey Graham (R-SC) and Ted Cruz (R-TX), sought to draw a direct contrast between how Jackson is being treated and how Supreme Court Justice Brett Kavanaugh was treated during his hearing in 2018. Repeatedly, senators noted that Jackson’s questioning would focus on her legal record and not what they called the “personal attacks” Kavanaugh experienced, when he was faced with allegations of sexual assault. In doing so, they downplayed the allegations brought against him and tried to suggest that their treatment of Jackson this week would be an improvement upon how Democrats previously behaved.
“When we say this is not Kavanaugh, what do we mean?” Graham said. “It means Democratic senators are not going to have their windows busted by groups. No Republican senator is going to unleash an attack on your character when the hearing is almost over.”
It’s a way to preempt the possible blame Republicans might get for their questioning of Jackson, said Mike Davis, the head of the Article III Project, a right-leaning advocacy group focused on the federal judiciary.
“It preempts any complaints Democrats might have about GOP criticisms of Judge Jackson’s record because their attacks on Justice Kavanaugh were personal and unproven,” Davis, who has been informally advising Republican staff, told Vox. “It’s also a reminder to the public of how terribly Democrats treated Justice Kavanaugh and his family. The GOP will focus on her professional record, giving their criticisms more credibility.” (There are key differences between the two: for instance, Kavanaugh faced credible allegations of sexual assault, while Jackson does not.)
Republicans also emphasized Democrats’ past opposition to federal judicial nominees Miguel Estrada, who is Latino, and Janice Rogers Brown, who is Black, to suggest that Democrats have been harsher on nominees of color if they are GOP appointees.
Republicans’ questions and attacks this week are intended to make the hearing “more of a political wash instead of a political win for Democrats,” Davis previously explained. By drawing attention to the ways Democrats have allegedly mistreated Republican nominees, the GOP is trying to suggest that its treatment of Jackson is well within Senate norms.
“If there’s one thing you can say about the judicial nomination wars, they’ll always say they’re responding to the previous bad behavior of the other side,” said Ilya Somin, a law professor at George Mason University and adjunct scholar at the Cato Institute.
Republicans relitigated past nominations
Republicans spent much of the first day walking through a litany of grievances about past nomination fights.
Many referenced Kavanaugh in some way, and many also spoke about Estrada and Rogers.
“We will be fair and thorough, as people would expect us to be, but we won’t get down in the gutter like Democrats did during the Kavanaugh confirmation hearings,” Sen. Chuck Grassley (R-IA) said in his remarks.
Kavanaugh was confirmed after a dramatic nomination fight that saw allegations surface against him of decades-old sexual misconduct, prompting an incredibly acrimonious fight among senators, large protests at the Capitol, and a dramatic and emotional second round of hearings and testimony at the height of the national Me Too movement.
The comparison suggests that Jackson and Kavanaugh’s nominations are taking place under similar contexts, though of course they are not. Republicans didn’t acknowledge that, and even played down the allegations.
“No one is going to inquire into your teenage dating habits,” Cruz said in remarks that appeared to gloss over the allegations Kavanaugh faced.
Statements by Republicans about both Estrada and Rogers Brown also seemed aimed at showing that Democrats have also previously opposed nominees of color. From 2001 to 2003, Democrats blocked Estrada’s nomination for the DC Circuit Court of Appeals due to questions about his experience and the belief that he’d add to the conservative tilt of the court. He was ultimately forced to withdraw his nomination. Rogers Brown, meanwhile, was confirmed for an appeals court seat in 2005, but only after Democrats delayed her nomination for two years because of her conservative views on issues including labor rights.
“The point Republicans might be trying to make is, if it was okay for Dems to oppose Janice Rogers Brown on judicial philosophy grounds, Republicans can oppose Ketanji Brown Jackson on judicial philosophy grounds,” Somin said.
In addition to citing their complaints with how past nominations were handled, Republicans also previewed other topics they intend to ask Jackson about this week, including her sentencing decisions in child porn cases, her work defending Guantanamo Bay detainees, and her position on packing the court.
Somin notes that Kavanaugh’s hearing was widely viewed as energizing Republican voters in 2018, just ahead of those midterm elections, and references to it now could at least temporarily fuel the base.
Republicans have also tied Jackson’s positions on sentencing to a broader “soft on crime” attack they’ve fielded against Democrats prior to the midterms. As crime rates have increased during the pandemic, the GOP has sought to pin the blame on President Joe Biden and other Democratic lawmakers.
This week’s hearings offer them another avenue to make that same case.