Ketanji Brown Jackson Confirmation Hearings: Live Stream and Discussion

Andrew Donaldson

Born and raised in West Virginia, Andrew has since lived and traveled around the world several times over. Though frequently writing about politics out of a sense of duty and love of country, most of the time he would prefer discussions on history, culture, occasionally nerding on aviation, and his amateur foodie tendencies. He can usually be found misspelling/misusing words on Twitter @four4thefire and his food writing website Yonder and Home. Andrew is the host of Heard Tell podcast. Subscribe to Andrew's Heard Tell SubStack for free here:

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67 Responses

  1. CJColucci says:

    Predictably, the Axis of Authoritarianism — Hawley, Cotton, and Cruz — have noisily come out against her precisely because she was a public defender and — gasp! — defended criminals. Which many people here think is a plus. I await their outrage.Report

  2. Jaybird says:

    Imagine, if you will, that you are an intern at a Republican think tank in December of the year 2020.

    Your boss comes up to you and says “I need you to write a list of arguments against Biden’s next Supreme Court pick.”

    “Wait, did somebody die? Or quit? Or retire? Who is the pick? I’ll need to do some research on what they did in school and who they clerked for and what opinions they probably had a hand in writing…”

    “No, nobody died or quit or retired. Nobody has been nominated yet. We’re not asking for a deep dive in any particular person. We just need a set of arguments as some bare bones that we’ll eventually be able to put some meat on when a person *IS* named next year or the year after.”

    “Oh, okay. Um. They’re a radical? They legislate from the bench?”

    “Yeah, yeah. Good start. We’ll want it the first week in January.”

    Now imagine that eventual assignment once it was turned in come the second or third week of January.

    Compare that theoretical group of arguments to the actual arguments about KBJ.

    The union where those two sets of arguments overlap are arguments that can be waved away as pro forma.

    The arguments that do not fall in that union are the ones that I’m interested in. I wonder if there will be any.Report

    • Marchmaine in reply to Jaybird says:

      Right… I have no idea what if any judicial philosophy she has outside of a progressive liberal ideology – which the Times notes is what she’s expected to deliver. From the blandest possible site, wikipedia:

      “In January 2022, The New York Times reported that Jackson had “not yet written a body of appeals court opinions expressing a legal philosophy” because she had joined the U.S. Court of Appeals for the D.C. Circuit in the summer of 2021. However, The Times said, Jackson’s earlier rulings “comported with those of a liberal-leaning judge”, including her opinions blocking various Trump administration actions.[10] Additionally, a review of over 500 of her judicial opinions indicates she would likely be as liberal as Justice Stephen Breyer, the justice she is nominated to replace.”

      There’s no heat because she’s replacing Breyer on a 6-3 court. Presumably the things where people think Breyer is/was wrong is where she will be wrong as well. Are there new things? I’d guess she’s Breyer 2.0 with refreshed views on all sorts things that will come before the court.

      The dogma lives strongly within her, I presume.Report

      • Jaybird in reply to Marchmaine says:

        I half expect her to be another Kagan (2022 version) and half expect her to be a Kagan (2022 version) 80% of the time and HOLY CRAP CAN YOU BELIEVE SHE WENT AGAINST THE DOGMA 20% of the time.

        Which, you know. Hey. What do you expect? Well within acceptable parameters.Report

    • CJColucci in reply to Jaybird says:

      Here’s one that doesn’t fall within that union and is in play already: she was a public defender and defended criminals. To be fair, though, they didn’t need to prepare that one. In the unlikely event, which has now occurred, that someone with a significant criminal defense background is nominated, the Axis already knows what to do with that. Just as they already know how to play the LSAT card once they see a black nominee.Report

      • Jaybird in reply to CJColucci says:

        To be honest, I do think that Biden undercut her by saying “I’m going to pick a Black Woman!” and then picking her instead of saying “I’m going to pick the best goddamn judge you’ve ever seen!” and then picking her.

        Which is not to say that the LSAT card becomes a good card. It’s not.

        I think that she’s going to get through the nomination process and come out the other side and demonstrate that she’s nowhere *NEAR* the least qualified person on the court during her long tenure on the Supreme Court.

        But Biden still kinda undercut her before her nomination.Report

        • CJColucci in reply to Jaybird says:

          How much did Reagan or Trump explicitly promising to appoint a woman undercut Sandra Day O’Connor or Amy Coney Barrett?Report

          • Jaybird in reply to CJColucci says:

            More than not at all in the case of Sandra Day O’Connor.

            Though, in the case of ACB, I know that people were screaming “NOMINATE ACB” from around noon on November 9th, 2016 until the day of her eventual nomination. So Trump’s announcement was seen as him finally getting around to nominating the Socon judge after nominating the Scalia Clone and the BBB judge.Report

    • Pinky in reply to Jaybird says:

      “The union where those two sets of arguments overlap are arguments that can be waved away as pro forma.”

      In terms of their impact, probably. In terms of their veracity, if they express consistencies within Democratic-nominated justices that are worth opposing, then they’re legitimate grounds for discussion.Report

    • Mike Schilling in reply to Jaybird says:

      “And we’ll tie here to CRT and child molestation.”

      “How the hell do you do that?”

      “Trust me.”Report

  3. Dark Matter says:

    At a glance she’s been well vetted and presumably will be well prepared.

    So this is political theater.

    Cruz will attack her for not being pro-life and because that raises his profile in some groups. Team Blue will vote in lock step to put her in. Team Red will vote according to how it helps or hurts their re-election chances. She’ll get a few Red votes maybe even double digits. Harris won’t cast a tie vote.Report

    • North in reply to Dark Matter says:

      Agreed. They can’t stop her unless they can find a body under her bed or something. So far they haven’t found one so she’s going to get in. Everything else is just pointless signalling. Now if Thomas keels over dead then you’ll hear some shrieking- but he’ll be promptly replaced by the Dems with a liberal anyhow. Mcconnell assured that.Report

  4. 1. Does she like beer?
    2. Did she have 5-6 figures in personal debt mysteriously disappear?
    3. How big a Nationals fan is she, in dollars?Report

  5. Jaybird says:

    Well, apparently she has had a non-zero number of rulings involving a topic that would require trigger warnings and would probably cause any given comment going into detail to be red flagged.

    The argument is something to the effect of “she gave unreasonably low sentences to the people who were convicted” versus “the gave sentences in accordance with what the prosecution said that they’d see as an appropriate sentencing”.

    I kinda see “hey, the prosecutor asked for X years, I gave X years” as pretty defensible.

    But we’re going to spend some time in the mud first.Report

    • InMD in reply to Jaybird says:

      There was a breakdown by one of the guest bloggers Scott Greenfield has at Simple Justice if anyone is interested. The post makes the case that she is not an outlier. The tldr is the guidelines are incredibly harsh and there may be an unspoken but growing consensus that is the case among the federal judiciary.

      https://blog.simplejustice.us/2022/03/23/machado-leave-judge-ketanji-brown-jackson-alone/#more-48782Report

      • Kazzy in reply to InMD says:

        I believe I also saw her (try to) explain that sentencing guidelines/recommendations are in part based on the number of offending/illegal images someone is in possession of and these were all determined back when such stuff was shared via the mail, meaning the number of images someone had was pretty directly related to how many acts of obtaining them they engaged in (e.g., someone with 20 images took the time to solicit many, many images). And that nowadays with the internet, someone can do one search and end up with 500 images on their computer. The courts — or perhaps just Jackson — recognize this and sought to account for it in sentencing.

        It was an interesting point and I’d be curious to see outside analysis of it.Report

      • Jaybird in reply to InMD says:

        Huh. She’s apparently the first justice in more than a generation to have presided over a trial in which there was a jury.

        That surprises me too.Report

  6. But the real question is whether babies are racist.Report

  7. Greg In Ak says:

    Have any Senators made any brilliant legal arguments about ….ohhh…i don’t know…….interracial marriage. Prob not, why would that kind of thing come up.

    ” Braun said examples of judicial activism include the landmark decision legalizing abortion. He said the Supreme Court shouldn’t “homogenize” issues nationwide, instead leaving them up to individual states to decide – which extends, when asked, to include interracial marriage.

    “If you’re not wanting the Supreme Court to weigh in on issues like that, you’re not going to be able to have your cake and eat it too,” Braun said. “I think that’s hypocritical.

    https://www.wfyi.org/news/articles/us-sen-mike-braun-scotus-should-leave-abortion-interracial-marriage-to-states

    Oh. Okay then.Report

    • JS in reply to Greg In Ak says:

      Oh yeah, definitely no problems with one state not recognizing your marriage in another state.

      I do love that we’re back to attacking interracial marriage.

      At this point, I could see Ted Cruz starting to rant about quadroons and just…not be surprised anymore.Report

      • Greg In Ak in reply to JS says:

        Hilariously that dipstick is trying to take back his words as fast as he can. He loudly walked into a slapping machine now he is whining about his face stinging.Report

      • Philip H in reply to JS says:

        {snark}You missed it entirely JS – this isn’t about interracial marriage – its about states rights {/snark}Report

      • Dark Matter in reply to JS says:

        To be fair, he’s not “attacking interracial marriage”. He’s attacking the Federal Gov creating one size fits all solutions for hot button issues. He was asked if that would apply to interracial marriage and he replied it would but he’s also said he’s in favor of it.

        I doubt any state would attempt to outlaw interracial marriage.

        Pushing issues down to the states seems like a way to reduce the stakes for federal control and the possibilities for authoritarianism. We had a conversation recently on how to increase general support for democracy and fewer cultural cramdowns was a suggestion.Report

        • Philip H in reply to Dark Matter says:

          The issues that Republican politicians want to push down to the states are issues that involve state sanctioned oppression or authoritarian actions to enforce. Abortion, suppression of LGBTQIA+ rights, suppression of voting rights. And many of those states are developing enforcement mechanisms that seek to prevent citizens from seeking redress by leaving and going to another state which permits the activity in question (e.g. Texas and Missouri’s abortion legislation).

          I doubt any state would attempt to outlaw interracial marriage.

          I used to believe no state would place bounties in the heads of people helping other obtain abortions. I no longer believe this.Report

          • Dark Matter in reply to Philip H says:

            There are currently 6 Team Red Supremes with 5 of them being hard Red.

            Not pushing down issues to the states may mean one-size “solutions” which you don’t like.

            And we can expand that issue list to gun control (why should Chicago be allowed to strip away people’s rights), immigration, and idk what else.Report

            • Philip H in reply to Dark Matter says:

              state by state “solutions” to national problems will not work, especially when states choose to criminalize the movement of people to those other states to seek remedies. Until states stop doing that, federal solutions – even crammed down ones – are far preferable.

              Ans SCOTUS – in its current configuration – already decides things in ways I don’t like. That’s why I vote the way I do, among other things.Report

            • DavidTC in reply to Dark Matter says:

              Not pushing down issues to the states may mean one-size “solutions” which you don’t like.

              Team Red is willing to push issues at literally any level they have power, and has been willing to the entire time they existed. The entire reason they sometimes want to push things to the states is that sometimes they have power in the states, but there is absolutely no hesitation to do things at a national level when they can. (Witness their emission nonsense at trying to deny California the right to set auto standards for their own state.)

              It is flatly absurd for Team Blue not to do the exact same.Report

              • Dark Matter in reply to DavidTC says:

                Far as I can tell, Team Red’s actual federal solution for the abortion issue is to push it back onto the states.

                It is flatly absurd for Team Blue not to do the exact same.

                Depends. Yes, we’re in bsdi territory. However various squeakings about civil war and the lack of trust in democracy? That’s a side effect of cultural cramdowns and “my side lost”.

                Push a lot of this down to the states and allow 50 solutions and not just 1, and we should see more trust in democracy and so on.Report

              • pillsy in reply to Dark Matter says:

                Far as I can tell, Team Red’s actual federal solution for the abortion issue is to push it back onto the states.

                That’s their political strategy. It’s not their solution.

                It actually can’t be their solution. Anti-abortion activists routinely cast themselves as the heirs of the abolitionists, and analogize Roe to Sanford.

                And just taken on its own terms it defies belief. “In Alabama it’s illegal to murder babies, but in New Jersey murdering babies is completely legal, and this is a sensible status quo,” is just not something a human being would say or believe.

                They’re using federalism as a tool to get what they want on the state level because they can’t get it at a federal level because their position isn’t popular enough. That’s the basic dynamic that allows federalism to work at all, not the fact that there are dozens and dozens of people in the country who have genuine principled commitments to federalism.Report

              • Dark Matter in reply to pillsy says:

                They’re using federalism as a tool to get what they want on the state level because they can’t get it at a federal level because their position isn’t popular enough.

                Yes. What is wildly popular in bible thump town/city/state isn’t popular across the nation.

                Similarly what is popular across the nation is deeply unpopular in various parts. This is especially true at a urban/rural level.

                We’re multi-cultural. State level solutions and compromises is a way for us to all get along.Report

              • Philip H in reply to Dark Matter says:

                As long as Texans, Oklahomans and Missourians can bounty hunt people aiding abortion, and in Missouri’s case potentially across state lines, state level solutions to a foundational national rights problem are unworkable. I mean even Texas republican voters want abortion to remain legal and their own politicians are ignoring them.

                https://texaspolitics.utexas.edu/blog/overview-abortion-attitudes-texas-four-things-know

                I have a whole post in review about this.Report

              • Dark Matter in reply to Philip H says:

                I assume that the courts will (eventually) throw out these “cross state lines” things. That’s pretty core to the system.

                The other problem child state-line-wise is gun control.Report

        • DavidTC in reply to Dark Matter says:

          I doubt any state would attempt to outlaw interracial marriage.

          I mean, Alabama didn’t bother to legalize it until 2000.Report

    • Philip H in reply to Greg In Ak says:

      They are no longer afraid to say the quiet parts out loud. Which makes it easier to know who the enemies of pluralistic democracy are. So yay, I guess.Report

    • pillsy in reply to CJColucci says:

      I’m old enough to remember when Lindsay Graham wasn’t just a writhing mass of brain worms barely held together by a suit made from human skin.

      “You’re reluctant to talk about it because it’s uncomfortable. Just imagine what would happen if people on late-night television called you a f’ing nut speaking in tongues because you practice the Catholic faith in a way they couldn’t relate to,” he added, making clear he still has a chip on his shoulder over how Democrats and the media treated Barrett.

      Report

  8. Philip H says:

    I do find it hilarious that Republicans still groan on about Bork – whom a goof number of their predecessors in the Republican Party voted against.Report

    • Jaybird in reply to Philip H says:

      In the iterated prisoner’s dilemma, one of the strategies is called “Grim Trigger“.

      There are a lot of reasons that “tit for tat” is a better play, if you ask me.Report

      • Philip H in reply to Jaybird says:

        So modern Republicans are whinning about Bork because their own side previously defected and voted against him? Really? Really?Report

        • Jaybird in reply to Philip H says:

          Hey, I’m of the opinion that even if Grim Trigger is the chosen strategy, Kennedy is dead, dead, dead.

          There is no one left to defect against.Report

          • Dark Matter in reply to Jaybird says:

            It’s not Grim Trigger. It’s the base(s) recognizing that the Supremes are going to be used to create one size fits all solutions.

            If we could resolve these issues in Congress then that’s where the interest would be and the Supremes would matter a lot less.Report

            • Jaybird in reply to Dark Matter says:

              Hey, I’m just talking about the Bork thing. That was the Grim Trigger.Report

              • Jaybird in reply to Jaybird says:

                And there are a bunch of folks out there for whom Trump is their own Grim Trigger!

                The tactic is available for anybody and everybody! It’s game theory!Report

              • CJColucci in reply to Jaybird says:

                Only trouble with that theory is that it wasn’t. Republicans voted in large numbers for most Democratic nominees after Bork. The margins began to get smaller and, in one notorious case, the process was derailed, but from 1987 through the end of the Obama administration, the Grim Trigger strategy was nowhere in evidence.Report

              • pillsy in reply to CJColucci says:

                I’d be interested to see how contemporary Rs responded to the Bork thing, because the way the actual vote shook out, I suspect opinion was split, with more than a few wondering why the Reagan Administration hawked up that particular lunatic hairball.Report

            • Philip H in reply to Dark Matter says:

              If we could resolve these issues in Congress then that’s where the interest would be and the Supremes would matter a lot less.

              I agree. Unfortunately Congress seems hell bent on refusing to do its job on these issues, and so many others. And so here we are.Report

            • pillsy in reply to Dark Matter says:

              No, it’s the base realizing that the Supremes can create the one size fits all solutions they like, and spending decades working diligently and intelligently to make sure that power was wielded in their favor.

              I obviously detest how they want to use that power, but it was an effective strategy implemented well. And while I don’t think it’s necessarily calculated, it also works even better alongside the base’s preference for Congress that can’t do a damn thing.Report

    • Pinky in reply to Philip H says:

      Goof number? One in the committee vote:
      D 0-9
      R 5-1

      Six in the full Senate vote:
      D 2-52
      R 40-6

      You’ll note that 100% Republican unity wouldn’t have changed the results.Report

  9. pillsy says:

    Cruz, Blackburn, and Braun did a stellar job proving that there really were Republicans who were opposed to her because she’s black, not just because she’s a Democrat.

    Really a credit to their party and the Senate, those three are.Report

    • Dark Matter in reply to pillsy says:

      Did those three go easier on Garland? Maybe call for him seating?Report

      • pillsy in reply to Dark Matter says:

        They didn’t ask him bizarre and irrelevant questions about “Critical Race Theory”, or suggest to him that states should be allowed to make his marriage illegal because his spouse was a member of a different race.Report

        • Dark Matter in reply to pillsy says:

          So they didn’t ask him about things that weren’t seriously in public discourse at the time… no wait, they didn’t ask him anything did they? I remember this being described as the worst thing ever.

          To be fair, I don’t think they have anything to do other than pound on the table and spin people up. So kudos to Biden and his team I guess.Report

          • pillsy in reply to Dark Matter says:

            They didn’t do anything to indicate that they had any reason to oppose him beyond him being a Democrat.

            I’m sure Blackburn, Braun, and Cruz could have figured out ways to grandstand in ways that made it clear that the only issue at stake with KBJ”s Team Blue jersey, like everyone else in the Senate managed. They chose not to.

            In Braun’s case I’ll grant that it may be that he’s just very dumb, but Cruz and Blackburn are just bad people.Report

            • Dark Matter in reply to pillsy says:

              They didn’t do anything to indicate that they had any reason to oppose him beyond him being a Democrat.

              That, by itself, is a train-wreck.

              In Braun’s case I’ll grant that it may be that he’s just very dumb, but Cruz and Blackburn are just bad people.

              Sure. This is widely known.

              When Trump was trying for the Presidency the first time and the choice was between Cruz and Trump, the powers that be couldn’t see Cruz as the lesser evil.

              Or maybe that’s “lesser Evil”.Report