The relatively sleepy confirmation hearings for Ketanji Brown Jackson, President Joe Biden’s nominee for the Supreme Court, finally produced a fiery exchange yesterday. But this wasn’t a discussion of law between a member of the Senate Judiciary Committee and the judge—it was a tense dialogue between Democratic Chairman Dick Durbin and Republican Senator Lindsey Graham. And the topic was not judicial precedent or legal reasoning, but rather the two parties’ different approaches to the prison at Guantánamo Bay.
Jackson was relegated to bystander. Perhaps by now she’s used to it. For much of the initial two days of the hearings, Jackson’s presence, much less her views or temperament, has seemed almost incidental. The sessions aren’t really about Jackson, but about other issues—especially Republicans’ anger at how Democrats have previously treated nominees of GOP presidents.
In large part, this is because the hearings offer relatively little drama: On the one hand, Jackson is expected to win confirmation, because Democrats need only a bare majority to confirm her; on the other, hyperpolarization of Congress means that she is likely to garner few, if any, Republican votes either. Barring a spectacular misstep, these hearings won’t affect the outcome much.
But they do provide a platform for senators to harp on their favorite issues, and to slap back at colleagues for past slights. Graham’s allotted time for questioning yesterday was a perfect example. He began with a series of questions about Jackson’s religion that seemed to bewilder the judge. “I am reluctant to talk about my faith in this way just because I want to be mindful of the need for the public to have confidence in my ability to separate out my personal views,” she said.
The questions might have bewildered most viewers at first too—Was this insinuation? What was he trying to learn?—until Graham’s real interest became clear: not Jackson’s faith but score-settling with Senator Dianne Feinstein, who, during the 2017 confirmation hearings for now-Justice Amy Coney Barrett’s nomination to the federal bench, said, “The dogma lives loudly within you.”
“Well how would you feel if a senator up here said, ‘Your faith, a dogma lives loudly within you, and that’s of concern’ … Would you find that offensive?” Graham said yesterday. It was a rhetorical question: Rather than wait for her answer, he provided one. “I would if I were you. I found it offensive when they said it about Judge Barrett.” Graham said Jackson should be proud of her faith, and added, “Judge Barrett, I thought, was treated very, very poorly, so I just wanted to get that out.”
He had more to get off his chest. Next, he asked a series of questions about Janice Rogers Brown, a retired judge on the D.C. Circuit Court, and in particular a Democratic filibuster that initially blocked her confirmation to the bench. “Do you realize she was filibustered for two years?” Graham asked. Jackson didn’t; again, her answer was beside the point. Graham just wanted to complain that Democrats had been less eager to confirm a conservative Black woman than a progressive one.
Then the South Carolinian asked an even more tortuous series of questions about a talk by the controversial professor Leonard Jeffries, hosted by the Harvard Black Law Students Association, that Jackson did not attend, a year before she entered law school. If you find this hard to follow, don’t feel bad—so did Jackson, an accomplished and admired legal mind. As it turned out, the point was simply to complain that Democrats had attacked Justice Samuel Alito, during his confirmation, for having been a member of a group called Concerned Alumni of Princeton that had opposed admitting women to the university.
Later, Graham asked Jackson about liberal groups’ campaign against J. Michelle Childs, a South Carolina judge whom Biden also considered for the Supreme Court vacancy. Jackson had no role in—or, per her testimony, knowledge of—the campaign. She was merely a prop for Graham’s complaint about his own preferred candidate not being nominated.
Graham did have somewhat more substantive questions about Guantánamo detainees. Jackson worked as a defense lawyer for detainees, and also worked on an amicus brief challenging the detention system. But, in the end, this line of questioning elicited little revelation about Jackson’s views. The tiff between Durbin and Graham was the only notable result of the whole thing. After Graham finished speaking, Durbin rebutted a couple of his points, much to Graham’s displeasure. “This whole thing by the left about this war ain’t working,” he snapped, and walked out. The real fight here was over congressional and presidential policy about Guantánamo—not the courts.
The most notable moments from the hearings so far have been like this: Jackson is required to be in the room, but only really as a procedural formality. On Monday, during opening statements, Democrats gushed over her while Republicans mounted a grab bag of attacks. Senator Ted Cruz tried to tie Jackson to critical race theory, last fall’s boogeyman, by saying that a D.C. school on whose board she serves had taught books by Ibram X. Kendi. Marsha Blackburn, of Tennessee, on Monday aired her own animus toward transgender athletes, a group conservatives hope to make this spring’s boogeyman, and tried to connect that, not especially intelligibly, to something Jackson had once said.
Some Republicans have raised questions that do actually relate to Jackson. Senator Josh Hawley is spearheading a claim that Jackson’s sentencing record shows she is soft on pedophiles. This claim is dubious—National Review’s Andrew McCarthy has dismantled it—and it seems like he’s winking at QAnon, but Hawley’s attacks do pertain to her judicial work.
Asking senators not to grandstand is, of course, like asking a river to run uphill. But although these moments don’t tell us much about what kind of justice Jackson might be, they are useful for showing just how angry many Republicans remain about Democrats’ treatment of Barrett and Justice Brett Kavanaugh.
The irony in Graham’s pique is that he complains Democrats are doing something bad but then insists he’s helpless to avoid doing the same thing. (This elaborate form of whataboutism is gaining sway among Republicans; in January Cruz said both that Democrats’ impeachments of Donald Trump were improperly political and also that Republicans will now have no choice but to do the same.)
But this is not quite the same thing. One can hold the view that Democrats’ criticisms of Kavanaugh and Barrett were inappropriate or excessively personal or mean-spirited, but the questions about Barrett’s religious practice and Kavanaugh’s high-school years were specific to their character and beliefs. Perhaps there was no answer that some Democrats would have accepted from either nominee. By contrast, Republicans don’t seem to need or even expect any answer from Jackson.