On Thursday, Justice Ketanji Brown Jackson, President Joe Biden’s nominee for the Supreme Court, was confirmed by a vote of 53 to 47 in the Senate. Only three Republican senators joined the 50 Democrats in supporting her. Many of the specific objections Republicans raised during Jackson’s confirmation hearings were ludicrous and irrelevant. But another line of objection to his appointment was eminently reasonable, if still debatable: his judicial philosophy.
While GOP senators had every right to oppose Jackson, the reasons many of them gave were dubious at best.
Some argue that the job of the Senate is to confirm any qualified “mainstream” candidate, regardless of differences in ideology and legal interpretation, and to attack those who disagree for making the confirmations of the Supreme Court too partisan. But in fact, there is nothing inherently wrong with opposing an otherwise qualified and traditional candidate based on judicial philosophy. Such opposition has become common practice among senators of both parties. Accepting his legitimacy and working within this constraint on appointments would serve us better than rejecting him.
While GOP senators had every right to oppose Jackson, the reasons many of them gave were dubious at best. The issue they most often raised in confirmation hearings was its supposed softness in sentencing defendants convicted of offenses involving child sexual abuse images. As conservative criminal justice expert Andrew McCarthy detailed in two National Review articles, Jackson’s rulings in those cases were well within normal parameters.
Even more laughable than the pornography charge was Texas Senator Ted Cruz’s accusation that Jackson’s prejudicial career as a public defender indicates she has “a natural inclination for the criminal” because the “heart of ‘a public defender is with murderers, criminals…it is for them that they take root.
Defense attorneys play an essential role in protecting constitutional rights, including those of the innocent. Such work in no way implies a special sympathy for “murderers”. Far from being a liability, Jackson’s work as a defense attorney should be an asset in a court system that is rife with attorneys whose prior experience largely consisted of representing the government.
Even Cruz’s demagogy was topped by that of Senator Tom Cotton of Arkansas, who accused Jackson of wanting to defend Nazi leaders tried at Nuremberg for war crimes after World War II. The insinuation that she is somehow sympathetic to the Nazis is absurd.
Despite these ridiculous excesses, Republicans weren’t necessarily wrong to oppose Jackson’s nomination because of his judicial philosophy. To his credit, GOP Senator Ben Sasse of Nebraska made it clear he was basing his opposition on such grounds, while acknowledging that Jackson had “impeccable credentials” and “is an extraordinary person with an extraordinary American history.”
Sasse and other Republicans could reasonably expect a liberal candidate to have significant reservations about his preferred approach to interpreting the Constitution, and often cast anti-conservative votes on important issues such as affirmative action. and gun rights. Jackson has made several notable liberal-leaning rulings during her career, has the support of many left-leaning groups, such as Demand Justice, and is widely expected to side with progressives on most issues. burning constitutional issues – otherwise the Democratic president’s vetting team wouldn’t have approved it. My own view is that Jackson probably deserved confirmation because his positions are probably as good or better than realistic alternatives. But reasonable senators might disagree with that assessment.
Such opposition is entirely legitimate. Senators have just as much right to consider judicial philosophy when voting on confirmation as presidents do when deciding who to nominate first. The methodology a judge uses to make decisions is an important part of their job. As Illinois Senator Barack Obama said then, defending his vote against George W. Bush’s nominee, Samuel Alito, “meaningful advice and consent [by the Senate]…includes an examination of a judge’s philosophy, ideology, and record,” as well as “intellect” and “personal character.”
In today’s polarized Senate, such opposition is common. The last Supreme Court justice to be confirmed with overwhelming bipartisan support was the one Jackson will replace: Justice Stephen Breyer, confirmed by an 87-9 vote in 1994. Since then, a large percentage of senators from the party opposing the president who made the selection opposed every candidate, beginning with Chief Justice John Roberts. Roberts got 22 opposing votes among the 45 Senate Democrats at the time (and one Democratic-aligned independent). After that, every Supreme Court nominee to come to vote was opposed by more than 75% of senators from the other party. Biden was among the Democratic senators who joined Obama in voting against Alito on grounds of judicial philosophy. They also both voted against Roberts.
Some argue that differences over judicial philosophy should be set aside if the candidate’s views are “mainstream”. But most of the Supreme Court’s worst decisions were in the judicial mainstream of their time, including Dred Scott and Plessy v. Ferguson. Jackson is well within the mainstream of liberal legal thought, just as recent Republican candidates have all been well within the conservative mainstream. This does not necessarily mean that they will avoid terrible mistakes. A senator who sincerely believes that the opinions of a traditional candidate will lead to terrible results can legitimately take them into account when deciding how to vote.
Of course, if the practice of opposing candidates based on judicial philosophy continues to be common, there is a risk that senators will almost never confirm candidates when the party opposing the president controls the Senate. But two factors mitigate this danger.
First, presidents faced with such a situation might choose to select more moderate candidates. By this I mean people who are genuinely likely to vote against their party’s dominant positions on a range of important and contested constitutional issues. Faced with such a candidate, the Senate would be encouraged to compromise.
Second, the Jackson hearings point to areas of possible convergence between the parties on constitutional issues. Jackson’s confirmation testimony was striking for its positive statements about originalist theories of constitutional interpretation traditionally associated with the right. Conservatives, of course, doubt the extent and sincerity of his commitment to originality. But it could grow over time.
Additionally, in recent years, some liberals have embraced specific legal doctrines historically held by conservatives or libertarians, including the limits of federalism to the power of the national government. For their part, some conservative jurists have become more sympathetic to views associated with the left, such as the rights of the accused, constitutional doctrines intended to limit law enforcement abuses, and anti-discrimination laws protecting gays and women. lesbians. This convergence may not continue, or even reverse. But it is a significant sign of the possibility of finding candidates that members of both parties could support.
There is still a significant gap between the two parties on both constitutional methodology and substantive case outcomes. It’s not going away anytime soon. But this gap should not remain as large as it is now. If it narrows over time, the confirmation process may actually become less polarized.