Senate Judiciary Committee hearings for Supreme Court docket nominees have lengthy drifted into the realm of inconsequential theater.
Not often is there any true try and discern nominees’ {qualifications} for the job, or what may disqualify them. Since President George W. Bush obtained slapped down for nominating his White Home counsel, Harriet Miers, to switch retiring Justice Sandra Day O’Connor in 2005, presidents have, for essentially the most half, been cautious to make sure that nominees have defensible — and infrequently exemplary — pedigrees.
On the similar time, the affirmation course of has devolved right into a petty partisan train. The occasion with essentially the most votes within the Senate will get its method, no matter what the hearings could reveal.
As FiveThirtyEight identified final month:
“Since [Justice Stephen] Breyer’s affirmation, 4 of the seven confirmed justices obtained lower than 60 p.c general assist within the Senate, and people 4 every earned assist from lower than 10 p.c of the opposing occasion’s senators. This contains all three of former President Donald Trump’s Supreme Court docket picks, who progressively obtained much less bipartisan backing: Neil Gorsuch obtained simply two Democratic yeas in April 2017, Brett Kavanaugh one in October 2018 and Amy Coney Barrett zero in October 2020.”
Nominees have realized to not say a lot of consequence, which reduces the listening to to assessments of rhetorical efficiency and bodily stamina. The nominee’s demeanor and comportment develop into signifiers of health to serve.
And even then, they’re no assure of how the hearings will go. In reality, the affirmation hearings of Brett Kavanaugh in 2018 could properly have been the demise knell for the decisiveness of those 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 popularity was being destroyed. Kavanaugh raised his voice and choked again tears in his personal protection. He was confirmed anyway.
That brings me to the spectacle we’re seeing within the affirmation hearings for Decide Ketanji Brown Jackson. There isn’t any doubt that she is certified. There’s additionally little doubt that, if Democrats merely stick collectively, she will be confirmed with none assist from Republicans.
So what does one do when a nominee’s ascension to the bench is probably a foregone conclusion? You utilize that large stage and the brilliant mild to placed on a present. In some ways, Decide Jackson is only a prop in that present, the rationale all 22 members of the Senate Judiciary Committee are gathered for this efficiency, however nothing extra. In some ways, she is getting used.
For the Republicans, these hearings current a chance to rehabilitate Kavanaugh, to rewrite historical past to fake that the rationale he had a troublesome affirmation listening to was as a result of Democrats lacked civility, not as a result of Dr. Ford had leveled a damning accusation towards him. The Republicans have invoked Kavanaugh repeatedly over the previous few days, and but Dr. Ford by no means will get a lot as a reference. She is being erased from this historical past altogether. Republicans are crafting their very own judicial “Misplaced Trigger” narrative round Kavanaugh.
In that method, Decide Jackson’s accomplishments are getting used towards Dr. Ford’s braveness. It does a disservice to each girls, positioning them as mere pawns in males’s energy struggles.
Decide Jackson can be getting used within the sense that Republicans are framing her as a proxy for Democrats whom they need to model as “tender on crime.” However it’s Jackson who’s taking the brunt of the criticism, as her sentencing file is what’s being critiqued.
Girls within the justice system, from cops on the streets to the judges within the courts, too usually have their toughness examined. The sexist implication is that girls could also be extra prone to reply emotionally and compassionately when a dispassionate studying of the details would dictate harsher therapy.
Extra cynically, Republicans on the committee — wittingly or not — are additionally offering ammunition for QAnon by distorting Decide Jackson’s file of sentencing folks convicted of possessing little one pornography.
As Senator Marsha Blackburn mentioned to Decide Jackson: “You even have a constant sample of giving little one porn offenders lighter sentences. On common, you sentence little one porn defendants to over 5 years beneath the minimal sentence advisable by the sentencing tips. And you’ve got said publicly that it’s a mistake to imagine that little one pornography offenders are pedophiles.”
(It ought to be famous {that a} New York Occasions truth verify discovered this declare to be a “distortion of the decide’s views,” with Blackburn omitting the truth that the sentencing fee that Decide Jackson was on “is bipartisan and issued the suggestions as a physique.”)
Nonetheless the connection between this decide, nominated by a Democrat, and the thought of pedophilia is potent.
In keeping with the Public Faith Analysis Institute, “the principle threads of QAnon’s core concept are {that a} community of Devil-worshiping pedophiles management the federal government and media, and {that a} coming ‘storm’ will sweep them out of energy,” and in a ballot final month, one in 4 Republicans imagine it.
It’s completely honest for senators to ask probing questions of a nominee, notably on points the place the solutions is perhaps at odds with their very own beliefs or these of their constituencies. No nominee ought to count on a coronation on this course of.
However what we’re seeing is past the robust questioning nominees have come to count on. Jackson is being utilized in a political battle that has nearly nothing to do along with her or with the court docket.
She deserves higher than this.