The Senate confirmation hearings for Judge Ketanji Brown Jackson, President Joe Biden’s nominee to the Supreme Court, could have been a sleepy affair. But Sen. Josh Hawley had other ideas.
The Missouri Republican sharpened his party’s line of attack against Jackson and other GOP senators joined him. “Sympathetic to terrorists AND pedophiles?” was the provocative subject line of an email blasted out by the Republican National Committee.
Jackson is still likely to be confirmed, possibly with bipartisan support. The case for letting her slide through runs as follows: Republicans might appear racist and sexist for attacking the first black woman nominated to the Supreme Court; she does not affect the ideological balance of the court, which will still tilt 6-3 in the conservative bloc’s favor; unlike when Merrick Garland was nominated, the next presidential election is over two years away; Biden’s likely to get a nominee confirmed at some point and the person could very well be worse.
White House press secretary Jen Psaki previewed how the administration would speak of Republicans who were at all serious about opposing her while pushing back against Hawley’s charges. “I think, as we broadly look at it, I mean, after weeks of trying hard to find some way to attack Judge Jackson — first saying that she was an affirmative action pick, then saying she was the product of dark money, then saying she should be she should be suspect because she was a public defender — a group of far-right Republican senators, as you noted, have launched a last-ditch, eve-of-hearing desperation attack on her record on sentencing in sexual offense cases,” she said.
None of the reddish state Democratic senators who are facing competitive reelection races this year have their votes realistically in play. You might be able to get Georgia Sen. Rafael Warnock or Arizona Sen. Mark Kelly to pay a political price for approving a liberal justice for the Supreme Court. You are not going to get them to vote no, which limits how much money conservative advocacy groups are going to spend hammering those states’ airwaves.
Still, Josh Hawley is playing to win. To genuinely threaten Jackson’s nomination, you not only have to keep all 50 Republicans united in opposition to her but you also have to make her so toxic that Sen. Joe Manchin of West Virginia, the least liberal Democrat in the upper chamber who also happens to represent the reddest state, has to consider voting against her.
That’s a tall order, and nothing in her record as a judge or public defender that Hawley and company have raised seems to have moved the needle to that point. But Hawley can show social conservatives, who are far more numerous and important to GOP electoral prospects than Beltway conservative legal nerds, Republicans are serious about the Supreme Court.
Not since the confirmation of Antonin Scalia in 1986 have Democrats voted in huge numbers for a conservative Supreme Court pick whose fealty to Roe v. Wade was in serious doubt. Half the Democrats in the Senate voted against Chief Justice John Roberts, the least conservative member of the conservative. Democrats went on the offensive against Justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh, defeated Judge Robert Bork, voted overwhelmingly against Justice Neil Gorsuch, and unanimously against Justice Amy Coney Barrett.
Justice Anthony Kennedy was confirmed with Democratic support on the third try following Bork’s rejection by the Senate. He would go on to author Planned Parenthood v. Casey, which upheld the core holding on Roe on abortion. Justice David Souter also won strong Democratic backing. He joined the liberal bloc of the court.
Conservatives have long been outraged by the tendency of Republican presidents to nominate Souters and Kennedys. It’s a trend that goes all the way back to Chief Justice Earl Warren. After watching the borking of Bork and the near-Borking of Thomas, they saw just nine Republicans vote against retiring Justice Stephen Breyer and only three oppose Justice Ruth Bader Ginsburg. Not since Justice Byron White has a Democratic president placed an accidental conservative on the high court.
What Josh Hawley hopes to accomplish is to reassure conservatives that there are Republican senators who take the Supreme Court as seriously as the Democrats who went after Bork, Thomas, and Kavanaugh.
Yet conservatives believed that the charges against Bork, Thomas, and Kavanaugh were false and unjust. Will they have higher standards for their own criticism of Jackson?
W. James Antle III is the Washington Examiner’s politics editor. He was previously managing editor of the Daily Caller, associate editor of the American Spectator, and senior writer for the American Conservative. He is the author of Devouring Freedom: Can Big Government Ever Be Stopped? You can follow home on Twitter: @Jimantle.
