Key takeaways from the four days of confirmation hearings for Ketanji Brown Jackson

By CNN Newsource

Published March 24, 2022 4:31 PM

By Tierney Sneed, CNN

Four days of confirmation hearings gave America the fullest picture yet of the judge who will likely become the first Black female justice of the US Supreme Court.

Judge Ketanji Brown Jackson spent three days in front of the Senate Judiciary Committee — two of them marathon sessions of questioning — where she described herself as an impartial and transparent jurist, while taking a calm but forceful tone to push back at GOP claims about her record. The dueling themes that Democrats and Republicans wanted to present about her nomination were punched up in a final day of testimony from outside witnesses Thursday.

Democrats are as eager as ever to confirm the DC federal appellate judge, as they decried the aggressive tactics employed by a handful of Republican members of the committee.

While she may pick up a few Republican votes, several GOP senators have sought to paint her as a soft on crime, “activist” judge, as they’ve used her hearings to showcase their messaging themes against Democrats heading into November’s midterms.

Even with the GOP theatrics, the reality that her confirmation won’t meaningfully change the conservative lean of the Supreme Court was still evident — particularly as Republican committee members launched attacks not just on Jackson, but on Supreme Court precedents protecting abortion rights, same-sex marriage and other landmark rulings.

Here are the key takeaways from Supreme Court confirmation hearings:

Even with the mudslinging, the historical significance of Jackson’s nomination loomed large

The groundbreaking nature of Jackson’s nomination stood out throughout the proceedings, amid all the attention to the particulars of her record.

“We have waited far too long for this day, but we are nonetheless overjoyed that it has finally arrived. Judge Jackson’s presence on the court will matter tremendously,” Wade Henderson, president and CEO of the Leadership Conference on Civil and Human Rights, said Thursday.

The shape of the national historic arc came through in how Jackson described her own background.

“I am here, standing on the shoulders of generations of Americans who never had anything close to this kind of opportunity,” Jackson said Tuesday.

She highlighted how her grandparents received little formal education and that her parents went to segregated lower schools in Miami, before studying at Howard University.

“I do consider myself, having been born in 1970, to be the first generation to benefit from the Civil Rights Movement, from the legacy of all of the work of so many people that went into changing the laws in this country so that people like me, could have an opportunity to be sitting here before you today,” Jackson said on Wednesday.

As the Senate’s questioning was close to winding up Wednesday, Jackson — at the request of California Democratic Sen. Alex Padilla — reflected on what message she’d give to young people feeling doubtful of their own abilities as they watched her ascent. She recalled feeling out of place and homesick during her first semester at Harvard University as an undergraduate.

“I was really questioning, um, ‘Do I belong here? Can I make it in this environment?” And I was walking through the yard in the evening and a Black woman I did not know was passing me on the sidewalk. And she looked at me and I guess she knew how I was feeling and she leaned over as we crossed and said, ‘Persevere,'” Jackson said. “I would tell them to persevere.”

Democrats remain committed to confirming Jackson, whether any Republicans join them or not

Coming out of the hearings, Democrats were insistent as ever that Jackson belonged on America’s highest court and that they intended to put her there.

“She will be confirmed. She will be a star on the Supreme Court,” Sen. Patrick Leahy, a Vermont Democrat, said after Wednesday’s hearing. “And I for one will proudly cast my vote for her.”

If their caucus remains unified, Democrats won’t need any Republican votes to confirm her. A party-line vote on Jackson would make her confirmation as close as any Supreme Court justice’s in modern history, and mark a drastic shift from a generation ago, when Justices Antonin Scalia and Ruth Bader Ginsberg were getting Senate approval with little to no opposition.

It is still possible that Jackson will get bipartisan approval, though one previously supportive Republican, Sen. Lindsey Graham — who was among the three Senate Republicans who voted for her US DC Circuit Court of Appeals confirmation — is signaling he’s leaning towards voting against her now.

“It’s a different game,” Graham told CNN on Wednesday.

Senate Minority Leader Mitch McConnell announced Thursday he would vote no on her confirmation.

With their eye on a goal of confirming her by Easter, senators’ next big step in her confirmation process will be a committee vote slated for April 4.

The hearings took a harsher tone than what Republicans were promising

In the lead-up to the hearings, Republicans previewed a “dignified” approach to the nominee that would be “respectful” in tone and “substantive” in content.

Those promises didn’t pan out.

While several of the GOP committees kept their demeanor friendly as they asked Jackson academic questions about her judicial philosophy and particular rulings in her record, a handful of Republicans took on a more hostile approach to grilling the judge.

During multiple rounds of GOP questions, Jackson faced repeated interruptions and harsh dismissals of the responses she was trying to provide.

Senators like Graham and Sen. Ted Cruz of Texas raised their voices in their interjections. Arkansas Sen. Tom Cotton told the judge that he didn’t find her “credible.”

The proceedings were at their ugliest in the lines of Republican inquiry focused on the sentences Jackson handed down in select set of child pornography cases. Republicans argued that she was unduly lenient towards those offenders — a claim at odds with the fact that her record is mostly in line with how judges typically approach these cases.

Missouri Sen. Josh Hawley zeroed in on one of the cases in question, providing graphic details of the abusive materials involved and picking apart the language she used in a sentencing hearing to address the offender. He, as well as Graham, Cruz and Cotton, hammered Jackson for her views — held widely among judges and other legal experts — that the current sentencing guidelines for certain cases of these kind were outdated.

Several of Jackson’s harshest questioners are believed to be in contention for a 2024 presidential run. Other talking points GOP has forecast for the 2022 midterm campaign also made their way into the questioning. Cruz badgered her about “critical race theory” — an academic discipline that looks at system racism, even as Jackson insisted it plays no role in how she approaches judging. At one point he grilled her on the presence of the children’s book “Antiracist Baby” in the curriculum of the private school for which Jackson serves on the board.

Other Republicans questioned her about transgender rights issues, with Tennessee Sen. Marsha Blackburn claiming Tuesday that Jackson’s refusal to provide a definition of woman “underscores the dangers of the kind of progressive education that we are hearing about.”

Republicans defended their tough approach to Jackson as one being squarely aimed at her record. But that was certainly not the case of demands made by Graham that Jackson weigh in on the treatment Justice Brett Kavanaugh received during his confirmation hearing — and Republicans’ continued anger at Democratic tactics in past Supreme Court fights was a major theme of the week’s proceedings.

Jackson distanced herself from the idea that she’d be a liberal firebrand

The Republicans said that they were disappointed she didn’t identify a specific judicial philosophy — like the originalism or textualism strains favored by conservatives — that she followed. But just as notable was the distance she put between herself and the judicial approaches that had typically been heralded by progressives.

During an extended discussion with Nebraska Republican Sen. Ben Sasse about the opposing judicial views of Justice Stephen Breyer and late Justice Scalia, Jackson refused to align herself with the philosophy espoused by Breyer, the justice she clerked for and now has been selected to replace.

Elsewhere in her testimony about her judicial “methodology” were hints of the attention to history and the meaning of the text at the time was written — the factors that judicial conservatives have traditionally emphasized.

There were other aspects of her testimony that also cut against the usual liberal grain. She discussed at length how her views have been shaped by having family members — including a brother and uncles — who served in law enforcement.

“I understand the need for law enforcement, the importance of having people who are willing to do that important work, the importance of holding people accountable for their criminal behavior,” Jackson said. “I also, as a lawyer and a citizen, believe very strongly in our Constitution, and the rights that make us free.”

Republicans make a case for the Supreme Court to revisit Roe, same-sex marriage and other key rulings

There were times that — given the contentiousness of the Republicans’ questioning — one would think the lean of the court was in the balance. But Jackson’s confirmation would not change the 6-3 lock conservatives have on the high court, and that reality was in the background of GOP broadsides against precedents they hope this court will undo.

Several of these comments were aimed at the court’s abortion rights precedents that may well be wiped away later this year in a case the court has heard that directly challenges the 1973 Roe v. Wade decision.

Multiple Republicans asked Jackson’s questions that sought to downplay the significance of the Supreme Court reversing one of its precedents. Louisiana Sen. John Kennedy asked her if the “Supreme Court is more likely to overturn a case — which would not be that extraordinary — if the precedent were 49 years old, as opposed to 4.9 years old.” Coincidentally, the Roe precedent is 49 years old.

She also faced several questions about the legal concepts underlying that ruling. Blackburn asked her about the absence of the word “abortion” in the Constitution. Republicans questioned her about her beliefs about when life began and at what point in the pregnancy a fetus became viable.

But Roe was not the only precedent on Republicans’ mind this week. Texas Sen. John Cornyn embarked on a lengthy inquiry about the 2015 Obergefell v. Hodges ruling, which legalized same-sex marriage nationwide, as he asked Jackson whether it was “an act of judicial policymaking.”

He suggested that the legal basis for that ruling — a concept known as substantive due process, that also underpins rulings on interracial marriage and birth control — was principle that “allows the court to substitute its opinion for the elected representatives of the people.”

Manu Raju contributed to this report.

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