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 %▲▼|
|Catherine Cortez Masto||Democratic||59||0||100|
|Chris Van Hollen||Democratic||59||0||100|
|Ben Ray Luján||Democratic||54||0||100|
|Shelley Moore Capito||Republican||13||36||27|
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.