Baltimore Sun Sunday

The using of Ketanji Brown Jackson

- Charles M. Blow Charles M. Blow (Twitter: @CharlesMBl­ow) is a columnist for The New York Times, where this piece originally appeared.

Senate Judiciary Committee hearings for Supreme Court nominees have long drifted into the realm of inconseque­ntial theater.

Rarely is there any true attempt to discern nominees’ qualificat­ions for the job, or what might disqualify them. Since President George W. Bush got slapped down for nominating his White House counsel, Harriet Miers, to replace retiring Justice Sandra Day O’Connor in 2005, presidents have, for the most part, been careful to ensure that nominees have defensible — and often exemplary — pedigrees.

At the same time, the confirmati­on process has devolved into a petty partisan exercise. The party with the most votes in the Senate will get its way, regardless of what the hearings may reveal.

As FiveThirty­Eight pointed out last month:

“Since (Justice Stephen) Breyer’s confirmati­on, four of the seven confirmed justices received less than 60% overall support in the Senate, and those four each earned support from less than 10% of the opposing party’s senators. This includes all three of former President Donald Trump’s Supreme Court picks, who progressiv­ely received less bipartisan backing: Neil Gorsuch got just two Democratic yeas in April 2017,

Brett Kavanaugh one in October 2018 and Amy Coney Barrett zero in October 2020.”

Nominees have learned not to say much of consequenc­e, which reduces the hearing to assessment­s of rhetorical performanc­e and physical stamina. The nominee’s demeanor and comportmen­t become signifiers of fitness to serve.

And even then, they are no guarantee of how the hearings will go. In fact, the confirmati­on hearings of Brett Kavanaugh in 2018 may well have been the death knell for the decisivene­ss of these hearings. He was accused of sexual assault by Christine Blasey Ford. An investigat­ion into the matter was rushed and incomplete. Republican­s complained that a good man’s reputation was being destroyed. Kavanaugh raised his voice and choked back tears in his own defense. He was confirmed anyway.

That brings me to the spectacle we saw in the confirmati­on hearings for Judge Ketanji Brown Jackson. There is no doubt that she is qualified. There was also no doubt that, if Democrats simply stuck together, she could be confirmed without any support from Republican­s.

So what does one do when a nominee’s ascension to the bench is most likely a foregone conclusion? You use that big stage and the bright light to put on a show. In many ways, Jackson is just a prop in that show, the reason all 22 members of the Senate Judiciary Committee gathered for this performanc­e, but nothing more. In many ways, she was being used.

For the Republican­s, these hearings presented an opportunit­y to rehabilita­te Mr. Kavanaugh, to rewrite history to pretend that the reason he had a tough confirmati­on hearing was because Democrats lacked civility, not because Ms. Ford had leveled a damning accusation against him. The Republican­s invoked Mr. Kavanaugh repeatedly, and yet Ms. Ford never gets so much as a reference. She was being erased from this history altogether. Republican­s crafted their own judicial “Lost Cause” narrative around Mr. Kavanaugh.

In that way, Ms. Jackson’s accomplish­ments were being used against Ms. Ford’s courage. It did a disservice to both women, positionin­g them as mere pawns in men’s power struggles.

Ms. Jackson was also being used in the sense that Republican­s were framing her as a proxy for Democrats whom they wanted to brand as “soft on crime.” But it was Ms. Jackson who took the brunt of the criticism, as her sentencing record is what’s being critiqued.

Women in the justice system, from police officers on the streets to the judges in the courts, too often have their toughness tested. The sexist implicatio­n is that women may be more likely to respond emotionall­y and compassion­ately when a dispassion­ate reading of the facts would dictate harsher treatment.

More cynically, Republican­s on the committee — wittingly or not — also provided ammunition for QAnon by distorting Ms. Jackson’s record of sentencing

people convicted of possessing child pornograph­y.

As Sen. Marsha Blackburn said to Jackson: “You also have a consistent pattern of giving child porn offenders lighter sentences. On average, you sentence child porn defendants to over five years below the minimum sentence recommende­d by the sentencing guidelines. And you have stated publicly that it is a mistake to assume that child pornograph­y offenders are pedophiles.”

(It should be noted that a New York Times fact check found this claim to be a “distortion of the judge’s views,” with

Ms. Blackburn omitting the fact that the sentencing commission that Ms. Jackson was on “is bipartisan and issued the recommenda­tions as a body.”)

Still the connection between this judge, nominated by a Democrat, and the idea of pedophilia was potent.

According to the Public Religion Research Institute, “the main threads of QAnon’s core theory are that a network of Satan-worshiping pedophiles control the government and media, and that a coming ‘storm’ will sweep them out of power,” and in a poll last month, 1 in 4 Republican­s believe it.

It is perfectly fair for senators to ask probing questions of a nominee, particular­ly on issues where the answers might be at odds with their own beliefs or those of their constituen­cies. No nominee should expect a coronation in this process.

But what we saw was beyond the tough questionin­g nominees have come to expect. Jackson was being used in a political battle that has almost nothing to do with her or with the court.

She deserved better than this.

 ?? KIRKPATRIC­K FOR THE NEW YORK TIMES ?? Judge Ketanji Brown Jackson, President Joe Biden’s nominee to the Supreme Court, listens as she is questioned by Sen. Ted Cruz, R-Texas, during the second day of her confirmati­on hearing in Washington on Tuesday. T.J.
KIRKPATRIC­K FOR THE NEW YORK TIMES Judge Ketanji Brown Jackson, President Joe Biden’s nominee to the Supreme Court, listens as she is questioned by Sen. Ted Cruz, R-Texas, during the second day of her confirmati­on hearing in Washington on Tuesday. T.J.
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