Senate Republicans opened Ketanji Brown Jackson’s confirmation hearing by focusing on something else: old grievances, knowing they won’t be able to stop her from being confirmed to the Supreme Court.
Several Republicans, including Senators Lindsey Graham (R-SC) and Ted Cruz (R-TX), attempted to draw a direct comparison between Jackson’s treatment and Supreme Court Justice Brett Kavanaugh’s treatment during his 2018 hearing. Senators repeatedly stated that Jackson’s questioning would focus on her legal record rather than the “personal attacks” that Kavanaugh faced when he was accused of sexual assault. In doing so, they downplayed the allegations brought against him, and tried to suggest that their treatment of Jackson this week would be an improvement upon how Democrats previously behaved.
“What do we mean when we say this isn’t Kavanaugh?” Graham stated his opinion. “It means that groups will not smash the windows of Democratic senators.” When the hearing is almost over, no Republican senator will launch an attack on your character.”
According to Mike Davis, the head of the Article III Project, a right-leaning advocacy group focused on the federal judiciary, it’s a way to avoid any potential blame for Republicans’ questioning of Jackson.
Republicans also emphasized Democrats’ previous opposition to federal judicial nominees Miguel Estrada, a Latino, and Janice Rogers Brown, a Black woman, to suggest that Democrats have been harsher on nominees of color if they are Republican appointees. Republicans’ questions and attacks this week are meant to make the hearing “more of a political wash than a political win for Democrats,” according to Davis. The GOP is attempting to suggest that its treatment of Jackson is in line with Senate norms by drawing attention to the ways in which Democrats have allegedly mistreated Republican nominees.
“If there’s one thing you can say about the judicial nomination wars, it’s that they’ll always say they’re responding to the other side’s previous bad behavior,” says Ilya Somin, a law professor at George Mason University and a Cato Institute adjunct scholar.
Republicans spent much of the first day airing grievances about previous nomination battles. Many people mentioned Kavanaugh in some way, as well as Estrada and Rogers.
Kavanaugh was confirmed after a tumultuous nomination process that saw allegations of decades-old sexual misconduct leveled against him, sparking an incredibly acrimonious fight among senators, large protests at the Capitol, and a dramatic and emotional second round of hearings and testimony during the national Me Too movement.
The comparison implies that Jackson and Kavanaugh’s nominations are occurring in similar circumstances, which they are not. Republicans refused to acknowledge this, even downplaying the allegations.
Republicans’ statements about both Estrada and Rogers Brown appeared to be aimed at demonstrating that Democrats have previously opposed nominees of color. Democrats blocked Estrada’s nomination to the DC Circuit Court of Appeals from 2001 to 2003, citing concerns about his experience and the belief that he would add to the court’s conservative leanings. He was eventually forced to withdraw his candidacy. Meanwhile, Rogers Brown was confirmed for an appeals court seat in 2005, but only after Democrats delayed her nomination for two years due to her conservative views on labor rights and other issues.
Republicans previewed other topics they intend to ask Jackson about this week, including her sentencing decisions in child porn cases, her work defending Guantanamo Bay detainees, and her position on court packing, in addition to citing their concerns with how previous nominations were handled.
Somin points out that Kavanaugh’s confirmation hearing in 2018 was widely viewed as energizing Republican voters in the run-up to the midterm elections, and that references to it now could, at the very least, temporarily fuel the base.
Republicans have also linked Jackson’s views on sentencing to a broader “soft on crime” campaign against Democrats in the run-up to the midterm elections. The GOP has tried to blame President Joe Biden and other Democratic lawmakers for the rise in crime rates during the pandemic.