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The Culture Wars Couldn’t Stop Ketanji Brown Jackson’s Confirmation

Everything’s part of the culture wars now, including Supreme Court confirmations. Ketanji Brown Jackson’s confirmation process ended on Thursday when the Senate voted 53-47 to confirm her to the court, and it was quick — it took just six weeks to move from nomination to confirmation — and partisan. Many Republicans spent Jackson’s nomination hearings accusing her of giving light sentences to child pornographers (she didn’t), supporting teaching critical race theory in secondary school (no evidence for that either) and trying to let dangerous criminals out of prison (nope).

That’s pretty much what we can expect from Supreme Court confirmations going forward, even when the stakes for the court are very low. For the past six years, as Republicans refused to hold a hearing for former President Barack Obama’s last Supreme Court pick and then ended the filibuster for Supreme Court nominees, narrow majorities to confirm justices have been the rule. And it’s particularly noteworthy that many Republican senators went all-out against the first Black woman to be nominated to the court, although her presence on the court won’t shift its ideological balance. In fact, Republican Sen. Lindsey Graham said that if his party had been in control, Jackson wouldn’t have gotten a hearing at all.

All of this signals that Supreme Court confirmations remain extremely contentious regardless of whether control of the court is at stake. And going forward, it’s unlikely that new Supreme Court nominees will make it onto the court unless the president’s party is also in charge of the Senate.

The partisanship of Jackson’s Supreme Court nomination was apparent from the roll-call vote. All 50 Democratic senators voted for Jackson — even Sens. Joe Manchin and Kyrsten Sinema, who have voted against the party on other high-profile issues. This shouldn’t necessarily surprise us, though. Manchin and Sinema have voted for every single person Biden has nominated to be a federal judge so far, including Jackson when she was nominated to the U.S. Court of Appeals for the District of Columbia Circuit last year. In fact, no Democratic senator has ever voted against one of Biden’s federal judicial picks.

Democrats have been united behind Biden’s judicial picks

How often each senator has voted for and against President Biden’s federal court nominees, as of April 7, 2022

Senator Party Yes Votes No Votes Yes %
Tammy Baldwin Democratic 59 0 100%
Michael Bennet Democratic 59 0 100
Richard Blumenthal Democratic 59 0 100
Sherrod Brown Democratic 59 0 100
Maria Cantwell Democratic 59 0 100
Ben Cardin Democratic 59 0 100
Tom Carper Democratic 59 0 100
Chris Coons Democratic 59 0 100
Catherine Cortez Masto Democratic 59 0 100
Tammy Duckworth Democratic 59 0 100
Dick Durbin Democratic 59 0 100
Maggie Hassan Democratic 59 0 100
Martin Heinrich Democratic 59 0 100
John Hickenlooper Democratic 59 0 100
Mazie Hirono Democratic 59 0 100
Angus King Independent 59 0 100
Amy Klobuchar Democratic 59 0 100
Pat Leahy Democratic 59 0 100
Jeff Merkley Democratic 59 0 100
Chris Murphy Democratic 59 0 100
Alex Padilla Democratic 59 0 100
Jack Reed Democratic 59 0 100
Jacky Rosen Democratic 59 0 100
Chuck Schumer Democratic 59 0 100
Debbie Stabenow Democratic 59 0 100
Chris Van Hollen Democratic 59 0 100
Raphael Warnock Democratic 59 0 100
Elizabeth Warren Democratic 59 0 100
Sheldon Whitehouse Democratic 59 0 100
Ron Wyden Democratic 59 0 100
Mark Kelly Democratic 58 0 100
Ed Markey Democratic 58 0 100
Gary Peters Democratic 58 0 100
Tina Smith Democratic 58 0 100
Jon Tester Democratic 58 0 100
Mark Warner Democratic 58 0 100
Cory Booker Democratic 57 0 100
Kirsten Gillibrand Democratic 57 0 100
Robert Menendez Democratic 56 0 100
Brian Schatz Democratic 56 0 100
Patty Murray Democratic 55 0 100
Ben Ray Luján Democratic 54 0 100
Bob Casey Democratic 51 0 100
Tim Kaine Democratic 50 0 100
Jon Ossoff Democratic 50 0 100
Jeanne Shaheen Democratic 49 0 100
Kyrsten Sinema Democratic 47 0 100
Bernie Sanders Independent 45 0 100
Joe Manchin Democratic 44 0 100
Dianne Feinstein Democratic 38 0 100
Susan Collins Republican 53 6 90
Lindsey Graham Republican 42 6 88
Lisa Murkowski Republican 47 9 84
Thom Tillis Republican 20 31 39
Chuck Grassley Republican 21 38 36
Mike Rounds Republican 11 21 34
John Cornyn Republican 15 35 30
Shelley Moore Capito Republican 13 36 27
Richard Burr Republican 11 34 24
Rob Portman Republican 12 38 24
Mitt Romney Republican 11 36 23
Pat Toomey Republican 10 38 21
Mitch McConnell Republican 10 40 20
Todd Young Republican 10 48 17
Joni Ernst Republican 7 43 14
John Kennedy Republican 8 51 14
Deb Fischer Republican 6 44 12
Cindy Hyde-Smith Republican 5 44 10
Mike Lee Republican 5 54 8
Roger Wicker Republican 5 54 8
Roy Blunt Republican 4 48 8
Marco Rubio Republican 3 50 6
Tim Scott Republican 3 55 5
Kevin Cramer Republican 2 45 4
John Hoeven Republican 2 55 4
Tom Cotton Republican 2 57 3
Cynthia Lummis Republican 1 46 2
John Barrasso Republican 1 47 2
Steve Daines Republican 1 49 2
Rand Paul Republican 1 49 2
Jim Risch Republican 1 49 2
Bill Cassidy Republican 1 56 2
Mike Crapo Republican 1 57 2
John Boozman Republican 1 58 2
Bill Hagerty Republican 1 58 2
Rick Scott Republican 1 58 2
John Thune Republican 1 58 2
Jim Inhofe Republican 0 46 0
Jerry Moran Republican 0 46 0
Marsha Blackburn Republican 0 48 0
Ron Johnson Republican 0 48 0
Richard Shelby Republican 0 50 0
Ben Sasse Republican 0 55 0
Ted Cruz Republican 0 56 0
Roger Marshall Republican 0 56 0
Dan Sullivan Republican 0 56 0
Mike Braun Republican 0 57 0
Tommy Tuberville Republican 0 58 0
Josh Hawley Republican 0 59 0
James Lankford Republican 0 59 0

Excludes votes a senator skipped.

Source: U.S. Senate

The real question going into Jackson’s confirmation was whether she would get any Republican votes. Three Republicans have voted for a majority of Biden’s federal judicial nominees thus far: Graham and Sens. Susan Collins and Lisa Murkowski. (They were also the only three Republicans to vote for Jackson’s appeals-court nomination.)

Two of those three ended up voting to confirm Jackson to the Supreme Court: Collins and Murkowski, the two most moderate members of the Senate GOP caucus. Murkowski’s decision was most interesting, since she is facing a tough reelection campaign this year against conservative Kelly Tshibaka, who has the endorsement of former President Donald Trump. But a new primary election system in Alaska — whereby all candidates, regardless of party, run on the same ballot and the top-four finishers go on to a ranked-choice general election — has largely eliminated the need for Murkowski to run to the right in order to survive.

A third Republican voted for Jackson as well — but it wasn’t Graham, who cited her “flawed sentencing methodology regarding child pornography cases” in voting against her. Instead, it was Sen. Mitt Romney, who has voted for just 23 percent of Biden’s federal judicial nominees. His yea vote was particularly surprising given that he voted against Jackson for the court of appeals; the last time a senator voted to confirm someone to the Supreme Court whom they had voted against for a lower court was in 1994.1

In the grand scheme of things, the three Republican yea votes were a drop in the bucket compared with the 47 Republican nay votes. The mostly party-line vote fits a pattern of Supreme Court nominations becoming more partisan. Throughout the 20th century, most senators — even those belonging to the opposition party — typically voted for a president’s Supreme Court nominee as long as he or she was qualified. But since Justice Samuel Alito’s nomination in October 2005, most opposition-party senators have voted against Supreme Court nominees.

And Republicans didn’t just express their opposition to Jackson through their votes. The increased rancor of Supreme Court nominations was also evident during her confirmation hearing, when some members of the GOP attempted to paint her as a dangerous person who was soft on crime, believed babies are racist and wanted to “indoctrinat[e]” white families about antiracism.

Sens. Ted Cruz and Marsha Blackburn were two of the most vocal opponents. Cruz used Jackson’s status as a board of trustees member at Georgetown Day School to question her views on what he refered to as critical race theory, which is typically not taught in K-12 education, and Blackburn launched into a transphobic series of questions related to gender, sex and sexuality. On the second day of Jackson’s hearings, the GOP’s official Twitter account joined the scrum, posting a GIF with her face next to her initials — KBJ — which were then scratched out and replaced with “CRT,” referring to critical race theory.

The GOP’s resistance did not end when the hearings did, either. Earlier this week, upon learning that three Republicans planned to support Jackson’s confirmation, Georgia Rep. Marjorie Taylor Greene pushed a baseless smear that the offending senators were “pro-pedophile,” referring to false allegations that Jackson had taken a lax stance on sentencing people charged with crimes related to child pornography.

Such is the culture-war era we live in.

But, in a sense, the Republican Party’s choice to paint Jackson as an inherently bad person pulls from a tried-and-true playbook that seeks to fuel existing white fears about perceived threats to the status quo. Indeed, Jackson’s grueling confirmation process wasn’t the first time Republicans have used a Black bogeyman to rile up their base. Thurgood Marshall, the first Black person to sit on the Supreme Court, faced similar attacks from Republicans and conservative Southern Democrats when he was nominated in 1967. But the barrage of questions that Jackson was forced to answer were still a far cry from her reputation as a federal judge who has garnered wide respect in legal circles.

All this despite this seat being a relatively low-stakes one to fill. In terms of Supreme Court math, Jackson’s presence won’t change the outcome on the big, high-profile issues that politicians care about — the cases that have to do with abortion, gun rights, voting restrictions and so on. As we’ve written before, she’ll almost certainly be a reliable liberal vote, but she’s replacing another Democratic appointee, so the fundamental balance of the court will remain the same. There will still be a six-justice conservative majority, giving Republican appointees a lot of latitude to push the law to the right. Jackson, as the newest member of the three-justice liberal minority, will probably find herself writing a great deal of dissents.

Going into Jackson’s confirmation hearings, it seemed possible that some Republicans might use it as an opportunity to put on a show of bipartisanship since they had little to lose. Instead, Jackson’s confirmation vote is just the latest sign that we have entered an era of such intense partisan polarization that Supreme Court nominees will be confirmed only if the president’s party controls the Senate.

Aaron Bycoffe contributed research.

Footnotes

  1. When former Sens. Daniel Inouye, John Danforth, John Glenn and Fritz Hollings voted for Breyer (whose seat, of course, Jackson will soon fill).

Alex Samuels is a politics reporter at FiveThirtyEight.

Amelia Thomson-DeVeaux is a senior writer for FiveThirtyEight.

Nathaniel Rakich is a senior elections analyst at FiveThirtyEight.

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