On Thursday, Judge Ketanji Brown Jackson, President Joe Biden’s nominee for the Supreme Court, was confirmed by a 53-47 vote in the Senate. Only three Republican senators joined all 50 Democrats in supporting her. Many of the specific objections that Republicans raised during Jackson’s confirmation hearings were ridiculous and off-base. But another line of objection to her nomination was eminently reasonable, even if still disputable: her 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 Senate’s job is to confirm any qualified “mainstream” nominee, regardless of differences over ideology and legal interpretation, and attack those who disagree for making Supreme Court confirmations overly partisan. But in fact, there is nothing inherently wrong in opposing an otherwise qualified and mainstream nominee based on judicial philosophy. Such opposition has become a common practice by senators of both parties. Accepting its legitimacy and working within that constraint on nominations would serve us better than rejecting it.
While GOP senators had every right to oppose Jackson, the reasons many of them gave were dubious, at best. The issue they raised most often during the confirmation hearings was her supposed softness in sentencing defendants convicted of offenses involving images of child sexual abuse. As conservative criminal justice expert Andrew McCarthy explained in detail in two National Review articles, Jackson’s rulings in these cases were well within normal parameters.
Even more risible than the pornography accusation was Texas Sen. Ted Cruz’s charge that Jackson’s pre-judicial career as a public defender indicates she has a “a natural inclination in the direction of the criminal” because a public defender’s “heart is with the murderers, the criminals … that’s who they’re rooting for.”
Defense lawyers play a vital role in protecting constitutional rights, including those of the innocent. Such work in no way implies any special sympathy for “murderers.” Far from a liability, Jackson’s work as a defense lawyer should be an asset in a judiciary that is overly stacked with lawyers whose previous experience largely involved representing the government.
Even Cruz’s demagoguery was topped by that of Sen. Tom Cotton of Arkansas, who charged that Jackson might have wanted to defend the Nazi leaders tried at Nuremberg for war crimes following World War II. The insinuation that she is somehow sympathetic to Nazis is absurd.
Despite such ridiculous excesses, Republicans weren’t necessarily wrong to oppose Jackson’s nomination because of her judicial philosophy. To his credit, GOP Sen. Ben Sasse of Nebraska clearly stated that he based his opposition on such grounds, while recognizing that Jackson has “impeccable credentials” and “is an extraordinary person with an extraordinary American story.”
Sasse and other Republicans could reasonably expect that a liberal nominee would have significant reservations about their preferred approach to interpreting the Constitution, and often cast votes inimical to conservatives on important issues such as affirmative action and gun rights. Jackson has made several notable liberal-leaning rulings during her career, has the backing of many left-leaning groups, such as Demand Justice, and is generally expected to side with progressives on most hot-button constitutional issues — otherwise a Democratic president’s vetting team would not have approved her. My own view is that Jackson probably deserved to be confirmed because her positions are likely as good or better than those of realistically feasible alternatives. But reasonable senators could differ 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 whom to nominate in the first place. The methodology a justice uses in reaching decisions is an important part of the job she performs. As then-Illinois Sen. Barack Obama put it in defending his vote against George W. Bush 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 routine. 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 back in 1994. Since then, a large percentage of senators in the party opposing the president who made the selection have objected to every nominee, beginning with Chief Justice John Roberts. Roberts got 22 opposing votes among the then-45 Senate Democrats (and one Democrat-aligned independent). After that, every Supreme Court nominee to come to a vote has been opposed by over 75 percent of senators from the other party. Biden was among the Democratic senators who joined Obama in voting against Alito on judicial philosophy grounds. They also both voted against Roberts.
Some argue that differences over judicial philosophy should be set aside if the nominee’s views are “mainstream.” But most of the Supreme Court’s worst decisions were within the judicial mainstream of their day, including Dred Scott and Plessy v. Ferguson. Jackson is well within the mainstream of liberal legal thought, just as recent Republican nominees were all well within the conservative mainstream. That doesn’t necessarily mean they will avoid terrible errors. A senator who sincerely believes a mainstream nominee’s views will lead to awful results can legitimately take that into account in deciding how to vote.
Of course, if the practice of opposing nominees based on judicial philosophy continues to be routine, there is a risk that senators will almost never confirm nominees when the party opposed to the president controls the Senate. But two factors mitigate that danger.
First, presidents faced with such a situation could choose to select more moderate nominees. By that I mean people who are genuinely likely to vote against their party’s dominant stances on some range of important disputed constitutional issues. Faced with such a nominee, the Senate would have an incentive to compromise.
Second, the Jackson hearings indicate areas of possible convergence between the parties on constitutional issues. Jackson’s confirmation testimony was striking for her positive statements about originalist theories of constitutional interpretation traditionally associated with the right. Conservatives, to be sure, doubt the extent and sincerity of her commitment to originalism. But it could grow over time.
Additionally, in recent years some liberals have embraced specific legal doctrines historically advocated by conservatives or libertarians, most notably federalism limits on the power of the national government. For their part, some conservative jurists have become more favorable to views associated with the left, such as criminal defendants’ rights, constitutional doctrines intended to limit law enforcement abuses and anti-discrimination laws protecting gays and lesbians. Such convergence may not continue, or may even reverse. But it is a significant sign of the possibility of finding nominees that members of both parties could support.
There is still a large gap between the two sides on both constitutional methodology and substantive outcomes in cases. It will not disappear anytime soon. But that gap need not remain as great as it is now. If it narrows over time, the confirmation process may actually become less polarized.