Heroes and Threats to American Democracy — Judge Ketanji Brown Jackson
I thought just maybe that with a supremely well qualified nominee for the Supreme Court that the better angels of our democracy would show themselves. I would have thought that after the horrors of the Russian shelling of Ukraine’s cities, that a modicum of civility would be shown by certain US Senators to a truly distinguished and accomplished American jurist and the first African American woman to be nominated for appointment to the Supreme Court. I would have thought that after the ramshackle, near constant racist musings and meanderings of our past President, that his support network in the US Senate would be sufficiently embarrassed not to cater to his vilest impulses. Not so, as we saw this past week.
As the Business Insider reports, racist rantings in Senate confirmation hearings for the Supreme Court go back to the nomination of Louis Brandeis in 1916, continue through the consideration of Thurgood Marshall’s nomination for the Court in 1967, and most recently reared its ugly head in the Senate hearings on Sonia Sotomayor’s nomination in 2009. https://www.businessinsider.com/racist-history-of-senate-scotus-confirmation-hearings-ketanji-brown-jackson-2022-3 The anti-Semitic, anti-black and anti-Latino prejudices of their times were replayed unalloyed and unabated just this week during the US Senate Judiciary hearings on the nomination of Judge Ketanji Brown Jackson.
Who is she? She is a distinguished graduate of Harvard College and Law School, and an editor of the Harvard Law Review. She served clerkships for the US District Court of Massachusetts, the First Circuit Court of Appeals and for Justice Steven Breyer in the US Supreme Court. She had a distinguished legal career working in private practice, as a federal public defender and as Vice Chair of the US Sentencing Committee for which she was unanimously confirmed by the US Senate. She served ten years as a federal district court judge in Washington DC, followed by nine months on the US Court of Appeals for DC. Out of nearly 600 opinions, she has only been reversed 12 times.
She is married to a surgeon, has two teenage daughters, and is related by marriage to former House Speaker Paul Ryan who introduced her at her first Senate judicial confirmation hearings as follows: "Our politics may differ, but my praise for Ketanji's intellect, for her character, for her integrity, it is unequivocal."
In an unusually tone-deaf answer to reporter’s questions about the nominee and bi-racial marriage under the US Constitution, Indiana Senator Mike Braun suggested that Loving v. Virginia was wrongly decided and that barring inter-racial marriage should be left to the states, Senator Marsha Blackburn suggested that Griswold v. Connecticut was wrongly decided, and access to contraception should be left to the states, and Senator Jon Cornyn of Texas opined that Obergfell v. Hodges, the court’s landmark decision on same sex marriage was best left to states. https://www.washingtonpost.com/politics/2022/03/22/braun-supreme-court-interracial-marriage/ Senator Braun later walked back his views on overturning Loving v. Virginia.
The American Bar Association’s Standing Committee on the Judiciary interviewed over 250 lawyers and judges and gave her their highest rating, noting “her integrity, even-handed nature, and exceptional competence”. https://www.bloomberg.com/news/articles/2022-03-24/jackson-not-soft-on-crime-aba-ratings-panel-tells-senate Some members of the Senate Committee expressed their views that Judge Brown-Jackson would be soft on crime, given her experience as a federal public defender. The ABA Committee responded “Notably, no judge, defense counsel, or prosecutor expressed any concern in this regard, and they uniformly rejected any accusations of bias.” Some on the Senate Committee expressed their views that Judge Brown-Jackson was lenient on child pornography defendants; actually all the legal sentencing experts reported her sentencing was very much in the mainstream of federal judges, whether appointed by Republicans or Democrats. https://abcnews.go.com/Politics/fact-check-judge-ketanji-brown-jackson-child-porn/story?id=83565833
A far more informative hearing might have focused on the Constitutional concepts of originalism vs. a living document and Judge Brown Jackson’s perspectives, as opposed to her sentences in child pornography cases. The originalist view is for a static interpretation of the Constitution as informed by the meaning of words and governing concepts from the late 18th Century. The living document perspective is more dynamic and looks to the evolving challenges of the modern day. Justice Scalia would commonly be pigeonholed into the originalist camp and Justice Breyer into the living document perspective. The debate encompasses our Founding Father’s views on women, slavery, racism, guns, gays, campaign finance, voting rights and religion among others vs. today’s understanding of individual rights and responsibilities. See for example, the dialogue at a past American Bar Association Summit from 2020. https://www.americanbar.org/groups/judicial/publications/appellate_issues/2020/winter/are-we-all-originalists-now/ However, the distinction may be less than meaningful given the ambiguities of historical research on the events of many centuries past and the profoundly progressive nature of the American Revolution and many of our nation's founders. https://slate.com/news-and-politics/2022/03/ketanji-brown-jackson-originalism-textualism-conservative.html For example, there is little to support the notion that the Founders thought freedom of speech under the First Amendment allowed unlimited corporate spending in elections. Their views on the Second Amendment were protective of the rights of state and local militias and gun owners of single shot muskets to protect the US homeland against the British invasions, they certainly did not countenance the open carry of semi-automatic weapons in the public square and the nation’s State Houses to intimidate their political rivals. Do we really believe that Alexander Hamilton would be supportive of Donald Trump and Ted Cruz’ views on immigrants’ protections under the Constitution? Did you watch Hamilton? Or that Thomas Jefferson shared Donald Trump, John Eastman and Rudy Giulaini’s views on the unchecked imperium of the imperial presidency or the role of electors in the Electoral College? How would you square the views of Ulysses Grant, William Seward and the framers of the Reconstruction Amendments with those seeking to suppress minority voting rights in states, the courts and Congress? As a Supreme Court Justice, would you be willing to listen to and apply the views of the framers and text of the Reconstruction Amendments – framers like Schuyler Colfax, Thaddeus Stevens and John Bingham on the 13th, 14th and 15th Amendments and the accompanying Civil Rights legislation? https://www.brennancenter.org/sites/default/files/2019-08/Report_A-New%20Birth-of-Freedom.pdf
Certain members of the Senate Judiciary Committee seemed totally oblivious to the concepts of civility and respect towards nominees for the highest judicial office of the land and relished their moments in the glare of the cameras capturing their worst moments while fully believing they are expressing their voters’ views; they aren’t except for a small shrinking minority. https://news.gallup.com/poll/390956/supreme-court-nominee-jackson-support-tied-highest.aspx Sometimes, it is best to let fools make fools of themselves in public settings. For example, Senator Hawley and his messaging is now deeply entwined with the utterly baseless disinformation conspiracies of QAnon. https://www.npr.org/2022/03/24/1088217548/hawleys-attacks-on-ketanji-brown-jackson-fuel-a-surge-in-online-conspiracy-chatt Unless Senate colleagues call them to account, unless the media calls them to account, unless their funders call them to account, and most importantly until their voters call them to account, this noxious behavior will continue unabated and worsen the credibility of the Senator and his cohort with the rest of the American public who is repulsed and alienated from the deep muck of their imaginary fever swamp.
Senator Cory Booker spoke best in capturing the very different sentiments of the rest of us and our enormous pride in this nominee. https://www.youtube.com/watch?v=qBldXtv-DKo