When Thurgood Marshall, the first Black man to be nominated for the Supreme Court, faced the Senate Judiciary Committee in 1967, he sat across from hostile Southern senators who sought, in the event of his confirmation, to lay at his feet the problem of rising crime gripping American cities. “I do not ask you these questions for any other purpose than to try to meet a responsibility here, before I again vote to confirm someone on that court whose philosophy, I think, if pursued without restraint and without being checked, would contribute to a menace that threatens our society,” Senator John McClellan, a Democrat of Arkansas, told Marshall during the hearings to consider his nomination.
On the second day of her historic confirmation hearing, Ketanji Brown Jackson, the first Black woman named to the Supreme Court, faced her own antagonists and skeptics in the U.S. Senate, all of them Republican, who otherwise had very little to say about her credentials, qualifications, or legal acumen—the actual requirements to reach the pinnacle of American law. Instead, as happened more than 50 years ago, their chief interest was crime—more specifically, how she defended, sentenced, or dealt with people accused or convicted of various criminal offenses. Their line of attack, apparent for all to see, is that doing any work with people who are criminally accused, let alone chipping away at any aspect of our nation’s bloated carceral state—which disproportionately impacts communities of color—is a bad thing.
Any part of a Supreme Court nominee’s record, of course, is fair game for what can rightly be described as a job interview, as Senator Alex Padilla of California called Tuesday’s session when it was his turn to engage Jackson. Except what Jackson faced from Republicans over 12-odd hours of questioning, broken up into 30-minute blocks per senator, was less a job interview and more an exercise in demagoguery, grandstanding, and a demonstration of who could stoop the lowest while doing so. Republicans made unfounded suggestions that Jackson, in her legal practice, branded George W. Bush and Donald Rumsfeld war criminals. That, as an appellate public defender, her work representing people detained at Guantánamo Bay had the potential “to destroy our ability to protect our country,” as Senator Lindsey Graham of South Carolina charged. And that, while on the bench as a federal trial judge, she was “soft” on the people whom she sentenced.
Jackson faced all of these broadsides, infuriating as they were, with aplomb. She didn’t have a choice: Republicans would have never permitted her the emotional outburst of, say, Justice Brett Kavanaugh. Early on in the hearing she attempted to diffuse Republicans’ concerns about crime by pointing out that, as a person with a brother and two uncles in law enforcement, those issues “are not abstract concepts or political slogans to me.” Likewise, her response when asked to address her work as a public defender post–9/11 was as exemplary as it was masterful. Defending the nation, she said, required many people, including her brother, to join the military. But that was not the only line of defense the Constitution called for. “After 9/11, there were also lawyers who recognized that our nation’s values were under attack—that we couldn’t let the terrorists win by changing who we were fundamentally,” she said. “Federal public defenders don’t get to pick their clients,” she added, noting that her representation of people detained at Guantánamo Bay was a byproduct of the Supreme Court recognizing that they were entitled to judicial review of their detention.
But Republicans persisted with their crime hysteria and disdain for unpopular clients. On more than one occasion, the day’s session felt as though the ghost of Jeff Sessions, the tough-on-crime Alabamian who left the Senate to join the Trump administration, was whispering questions in his former colleagues’ ears. Take this unanswerable query from Arkansas senator Tom Cotton, who spent the bulk of his time appealing not to Jackson’s intellect or experience in the law, but to the lowest common denominator among those fearmongerers in Congress: “Do you think we should catch and imprison more murderers or fewer murderers?”
Jackson, as other nominees before her, knew not to take the bait if the question confronted her with a policy issue that may come before her as a Supreme Court justice. And she rightly noted, as any judge would, that if Congress doesn’t like something, Congress can do something about it. But Cotton, who joined the Senate Judiciary Committee only last year with the position that the system shouldn’t “coddle criminals,” insisted on getting Jackson on the record about our nation’s need to solve murders.
“Senator, we should hold people accountable for their crimes,” she said. “And so if people are not being held accountable, then that is a problem.”
The ritual of Senate confirmation hearings is largely dependent on the party that leads the committee and whether the nominee is on its side, so to speak. With this dynamic in mind, Dick Durbin, the Democratic committee chairman, tried his best to anticipate and blunt Republicans’ antics. This became especially necessary following Monday’s introductory hearing, a largely ceremonial affair where senators take turns offering opening remarks both friendly and unfriendly toward the nominee—and where the nominee simply nods politely and doesn’t speak except to read her opening statement.
During that opener, Senator Josh Hawley of Missouri did exactly what he had previewed in tweets: He foreshadowed a vile line of questioning that took issue with Jackson’s sentencing record when it came to people convicted of possessing child pornography. But on Tuesday, Durbin stepped in and asked Jackson what went through her mind when faced with the accusation that she let such offenses off the hook. “As a mother and a judge who has had to deal with these cases, I was thinking that nothing could be further from the truth,” Jackson told Durbin. “These are some of the most difficult cases that a judge has to deal with, because we’re talking about pictures of sex abuse of children. We’re talking about graphic descriptions that judges have to read and consider when they decide how to sentence in these cases. And there’s a statute that tells judges what they’re supposed to do. Congress has decided what it is that a judge has to do in this and any other case when they sentence.”
In a world where Republicans care that judges follow the law, the facts, and nothing else, that should’ve been enough to silence Hawley. But he instead doubled down, running through the details of cases where he alleged Jackson went easy on people convicted of heinous sex crimes. Jackson in turn schooled Hawley on the way federal sentencing works: judges assess each case based on factors set out by Congress; the federal sentencing guidelines, which judges consult, aren’t mandatory; the Supreme Court made this regime possible, and Congress hasn’t lifted a finger to change the system as it exists. In the face of all of that, Jackson said, “I was doing what judges do.”
In other words, she followed the law. Indeed, for all their intemperate interventions, not a single Republican senator ever came close to suggest, let alone establish, that Jackson didn’t do as the law commanded. And as Senator Mazie Hirono of Hawaii, a Democrat who spoke after Hawley, made clear, his questions about federal sentencing amounted to theatrics. Hawley doesn’t really care about judges imposing lower-than-requested sentences on unpopular defendants; he voted to confirm a number of Trump judges with a history of doing just that. He only appears to care when the judge doing so is the first Black woman to be nominated to the Supreme Court—a judge who sentenced people thoughtfully, holistically, and as Congress prescribed. If Congress doesn’t like how Jackson and many other judges are going about the hardest part of their jobs, Congress is free to change the law.
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