What To Expect From Ketanji Brown Jackson’s Confirmation Hearings
Note: We probably won’t learn much.
Here we go again. For the fourth time in five years, the strange rituals of the Supreme Court confirmation process have overtaken the Capitol. In the weeks since U.S. Circuit Judge Ketanji Brown Jackson was formally named as President Joe Biden’s nominee to fill a soon-to-be-vacant spot on the high court, she has been paying courtesy visits to the senators who will vote on her confirmation. Now she’s made it through the gauntlet of private chitchat and is heading into an onslaught of public questions, none of which anyone really expects her to answer.
Supreme Court confirmation hearings have a predictable rhythm, and this one doesn’t look like it will be an exception. Jackson will face a several-day barrage of broad and complex questions about her background, her philosophy as a judge and her stance on hot-button issues. Democrats will grandstand and lob her softballs. Republicans will grandstand and try to paint her as a radical. Jackson will smile and offer a series of polite nonanswers.
These hearings feel like they should be consequential — after all, Jackson is up for a lifetime seat on the country’s most powerful court. But the process of confirming a Supreme Court justice has mostly become just another partisan performance. Barring a last-minute surprise, the outcome is already sealed, and everyone knows it. Democrats have the votes, so Jackson is almost certain to be confirmed within a matter of weeks. Her presence on the court — while historic — won’t do anything to change its conservative tilt. The main question is whether a Republican or two, sensing a low-cost opportunity to make a gesture toward bipartisan harmony, will cross the aisle to vote for her.
As I said, strange rituals.
The task of confirming would-be justices wasn’t always so drawn out, or so political. Early in the nation’s history, it might only take a couple of days for a Supreme Court nominee to be confirmed once they were named by the president. As the Supreme Court has grown more powerful and high-profile, the process has gotten longer and talkier. Since the mid-20th century, when the high court began to wade deeper into contentious battles over civil rights, the length of time between a justice being nominated and confirmed has grown dramatically, in large part because of the addition of public hearings. Jackson’s confirmation process may end up looking short compared to other modern justices, but that’s only because it’s taken months for many recent justices to be confirmed.
Senators have also grown more eager to publicly weigh in on nominees’ qualifications. According to a FiveThirtyEight analysis from 2018, the number of issues that were covered during the hearings has increased in recent years too, with a special focus on topics that have gotten more politically important, like civil rights and judicial philosophy. But that doesn’t mean nominees are sharing more about their actual views on the issues voters care about — in fact, when they’re asked about issues that could come before the Supreme Court in the future, they routinely refuse to say anything. “He has responded to many questions over the course of these hearings but he has adequately answered far too few of them,” Sen. Patrick Leahy complained after three days of back-and-forth with now-Justice Samuel Alito.
Republicans have promised Jackson a “respectful” back-and-forth. Whether that actually happens, of course, remains to be seen. It might not seem worthwhile to turn these hearings into a partisan bloodbath — after all, Jackson’s nomination won’t shift the ideological balance of the court, which will retain a 6-3 conservative majority. But as I wrote earlier this month, it’s possible that racist or sexist lines of questioning could filter into the hearings in subtle or explicit ways, and raise the temperature of the interrogations. Jackson is pretty popular overall, which makes this strategy risky — several recent polls have found that about half of Americans want the Senate to confirm her to the Supreme Court, and only around 30 percent are opposed to her confirmation. (The rest said they didn’t know.)
There are certain aspects of Jackson’s background that the senators seem likely to linger on. Her supporters will highlight the historic nature of her nomination, as the first Black woman and public defender to be tapped for the Supreme Court. They’ll also emphasize her impeccable qualifications. On the other hand, her detractors are likely to seize on her career as a public defender as evidence that her ideology is too extreme, particularly on issues like crime. Republican Sen. Josh Hawley previewed a potential line of attack in a Twitter thread last week where he claimed that Jackson had a “pattern of letting child porn offenders off the hook.” The Republican National Committee, meanwhile, criticized her work representing detainees at Guantánamo Bay.
And depending on their mood, other Republican senators may argue that she has the wrong qualifications for the job — in the past few weeks, conservatives have implied both that she’s not qualified and that she’s too qualified. Alternatively, opponents may hone in on the cases where her decisions as a trial court judge were reversed by higher courts. That line of attack might not be very fruitful, though; According to an analysis of Jackson’s record as a trial court judge by law professors Josh Fischman and Kevin Cope, her reversal rate is low, like most of the other judges in the District of D.C.
These hearings, then, are really about politics, not Jackson herself. We already have a pretty good idea of where Jackson would land, and Republicans are unlikely to ferret out anything new. Over the years, as control of the Supreme Court has become an increasingly high-stakes political issue, advocacy groups have pushed presidents to nominate justices who are ideologically predictable. Jackson is no exception. It’s true that based on the empirical metrics we have, it’s not clear exactly where she’d fall on the court’s left wing, but she would almost certainly be a reliable liberal vote.
For that reason, Jackson will be lucky to get even a sliver of bipartisan support. As my colleague Geoffrey Skelley wrote in February, successful Supreme Court nominees used to get the overwhelming support of senators in both parties, but those days have been over for a while. All of Trump’s nominees were confirmed with very narrow margins. Jackson did get three Republican votes when she was nominated to the D.C. Circuit Court of Appeals last year — but there’s no guarantee those senators will remain on her side now that a Supreme Court seat is up for grabs.
But unless a moderate Democrat unexpectedly defects, which seems unlikely right now, Jackson’s path to the Supreme Court looks smooth. Occasionally, big and important issues do come up that pose a real threat to the nominee’s confirmation — the allegations that Justice Brett Kavanaugh attempted to rape a woman in high school are a notable recent example. For the most part, though, Supreme Court confirmation hearings have become very similar to other televised congressional spectacles — an opportunity for senators to advertise their own ideological sentiments in viral soundbites. This time, the fact that control of the court isn’t at stake isn’t likely to stop senators from seizing the spotlight, and it certainly won’t speed the hearings along. At worst, that could mean the next few days descend into ugly race-baiting rhetoric — and at best, it could make the process feel pretty empty.