Ketanji Brown Jackson Confirmation Hearings: Live Stream and Discussion
The confirmation hearings for Ketanji Brown Jackson, President Biden’s nominee to be an Associate Justice of the U.S. Supreme Court, are expected to begin Monday, March 21 at 11 a.m. ET with opening statements. If confirmed by the Senate, Judge Jackson – a Harvard graduate who currently serves on the U.S. Court of Appeals for the District of Columbia Circuit – would become the first Black woman to serve on the Supreme Court.
Our own Em Carpenter wrote a bit about the reaction to Judge Jackson’s nomination:
Some lawyers, during their careers, find themselves the mouthpiece for some seriously repugnant people. Harvey Weinstein had counsel, as did Jeffrey Dahmer and Tim McVeigh and any number of other horrid excuses for humanity. And thank goodness they did; just imagine how much prosecutors could get away with if there was no lawyer on the other side? And what can (should) happen when prosecutors break the rules? It’s that thing we so often hear about: the bad guy “gets off on a technicality”.
Just imagine that you somehow find yourself charged with the most heinous, disgusting crime you can think of. You’re the accused in a case that made the front page, the type of case prompting a mob of torches and pitchforks outside the jail calling for your immediate hanging. Only thing is, you didn’t do it. Or it was an accident. Or any of a hundred other possibly mitigating things. The public doesn’t know that or care to hear that; all that matters is that you are accused of this horrific thing and they all want you under the jail for it. Now imagine that no one will help you. No lawyer is willing to protect your rights because the thing you are accused of is just so terrible and you are so loathed. You are on your own before the court with no legal knowledge beyond that which you learned from Jack McCoy or Ben Matlock. You have no way to call witnesses, to point out when the prosecutor is breaking the rules or any ability to investigate your own case. You are a fish in a barrel and all the guns are pointing at your head with no one to help. That is apparently the way “Not The Bee” thinks things ought to be, I guess.
I retweeted this nonsense from Not the Bee with incredulity and had at least one response in favor of this dumb tweet. “She’s a political activist in robes,” he said. I asked for examples from Judge Jackson’s body of work; he had none, which is not surprising since he also thought she had no judicial experience beyond her short stint on the Court of Appeals. But it’s what he’d heard, you see. And she’s a minority and she was a public defender so it must be assumed that she is a liberal political activist unfit for the bench.
Judge Jackson’s service as a public defender, even for a suspected terrorist, does not make her unfit to sit on the high bench. In fact, in some ways, it makes her more qualified to do so than her already seated colleagues. She’s fought in the dirty trenches where corporate lawyers and law professors and in-house counsel and law clerks fear to tread.
Is Judge Jackson otherwise suited for the job? I don’t know. I’ll let you know when I’m done sifting through hundreds of opinions to try to get a read on her. But if she isn’t, Judge Jackson representation of unsavory clients is not why.
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
Hawley got called out by Andy McCarthy of all people. Not about criticism for her being a PD, but criticism for her being a judge that didn’t impose maximum sentences.
https://www.nationalreview.com/2022/03/senator-hawleys-disingenuous-attack-against-judge-jacksons-record-on-child-pornography/Report
Two days ago, I began waiting for the outrage. Haven’t seen it yet.Report
Why waste our time being outraged at the entirely predictable attempts of the Right to cloak their derisive misogyny and racism in attacks on a lawyer doing her constitutional duty? What would that outrage get us?Report
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
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
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
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
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
How much did Reagan or Trump explicitly promising to appoint a woman undercut Sandra Day O’Connor or Amy Coney Barrett?Report
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
Beer Beer Beer?
Anyway, he’s the Ken Starr thug judge.Report
“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
Legitimate grounds for pro forma discussion and likely to be more important for reelection fundraising than for moving any judicial needles.Report
That’s why people like you and me hang out on linedancing.com rather than waste our time talking about politics and culture.Report
“And we’ll tie here to CRT and child molestation.”
“How the hell do you do that?”
“Trust me.”Report
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
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
If Thomas dies, we’ll see Weekend At Bernie’s-style shenanigans to try to push his replacement into 2023.Report
If he dies tomorrow then we’ll have drama but team red won’t have the power.
Weekend At Bernie’s will happen if he is mostly (but not totally) dead in the hospital.Report
“Justice Thomas is still out of touch. We are told he’s out hiking the Appalachian Trail.”Report
“My husband has told me he’ll be back to the court any week now. I told him he should take the time he needs, I expect X months.”
His wife is a Team Red gal and I think we’ve seen a First Lady pull this off. “My husband has decided…”
Edit: So in other words he’s in the hospital and she’s the only one who has access to him.Report
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
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
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
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
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
Not Sotomayor? She was a District Judge before being elevated to the Second Circuit. But she never seated a jury?
Huh! I never knew that.Report
But the real question is whether babies are racist.Report
And what her definition of “woman” is.Report
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
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
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
{snark}You missed it entirely JS – this isn’t about interracial marriage – its about states rights {/snark}Report
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
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 used to believe no state would place bounties in the heads of people helping other obtain abortions. I no longer believe this.Report
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
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
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
Far as I can tell, Team Red’s actual federal solution for the abortion issue is to push it back onto the states.
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
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
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
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
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
I mean, Alabama didn’t bother to legalize it until 2000.Report
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
Lindsey Graham, drama queen:
https://thehill.com/homenews/senate/599208-graham-gets-combative-with-jackson-what-faith-are-you-by-the-wayReport
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.
Report
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
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
So modern Republicans are whinning about Bork because their own side previously defected and voted against him? Really? Really?Report
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
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
Hey, I’m just talking about the Bork thing. That was the Grim Trigger.Report
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
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
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
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
The filibuster is Bad, Actually, and is a key driver of both Executive and Judicial overreach.Report
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
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
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
Did those three go easier on Garland? Maybe call for him seating?Report
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
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
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
That, by itself, is a train-wreck.
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