I remember reading the list of names proffered by Demand Justice as potential Supreme Court nominees, and thinking they were not just batshit crazy, but dangerously off the rails. Some of their choices weren’t there because they were smart, open-minded, and brought different experiences to the Court. Some were there because they swore fealty to being biased.
If confirmed, the corporation would always lose, the black guy would always win unless his adversary was a trans woman of color, in which case he was screwed. Forget law. Forget reason. Don’t even bother to argue. Their vote was in before the briefs were filed. And in the minds of the unduly passionate, this was good because outcome was all that mattered to groups like Demand Justice.
That was not the case with Judge Ketanji Brown Jackson, who served as a D.C. district court judge and has now been confirmed for the circuit. She’s black. She’s a woman. She was a former federal defender. But the thing that matters is that she’s eminently qualified to serve as a circuit judge. And for that reason, she was not only confirmed by a bipartisan vote, even if only a few Republicans (53-44) were willing to do the right thing, but she scares the daylights out of Mitch McConnell. You see, Judge Jackson’s name was on the list of potential Supreme Court justices too, and now she’s perfectly positioned to be Biden’s nominee.
“She has all the qualities of a model jurist,” Senator Chuck Schumer, Democrat of New York and the majority leader, said as he urged her approval. “She is brilliant, thoughtful, collaborative and dedicated to applying the law impartially. For these qualities, she has earned the respect of both sides.”
This time, Schumer is right. Mitch didn’t take it well.
Her approval came as Senator Mitch McConnell of Kentucky, the Republican leader, threatened to open a new front in the judicial wars that have rocked the Senate for decades. In an interview with the conservative radio commentator Hugh Hewitt, Mr. McConnell said Republicans would most likely block any Supreme Court nominee put forward by Mr. Biden in 2024 if Republicans regained control of the Senate in next year’s elections and a seat came open.
The rationalization for refusing to hold hearings for Merrick Garland were nonsensical absent extremely motivated reasoning. McConnell managed to pull it off, as the constitutional duty to advise and consent includes no penalty for choosing instead to ignore and stonewall, but the argument was vacuous. The Senate’s duty is no different when the majority is of the same party as the president than when it isn’t. Just because you can get away with it doesn’t make it right.
But Mitch couldn’t even bring himself to say that, should the Reps take back the Senate in the midterms, he would give Judge Jackson a fair shake in 2023.
As for what would happen if a seat became open in 2023 and Republicans controlled the Senate, Mr. McConnell stopped short of declaring that he would block Mr. Biden from advancing a nominee so long before the election, but he left the door open to the possibility. “Well, we’d have to wait and see what happens,” Mr. McConnell said.
Is this the Reps’ version of court-packing, refusing to perform the duty imposed on them by the Constitution to prevent a Democratic president from filling a vacant seat on the Court? If it’s wrong for the Dems to threaten to add more seats just to fill them with their own people, is it not just as wrong for the Reps to threaten to refuse to consider a nominee in order to prevent a fully legitimate, exceptionally well-qualified jurist from receiving the consideration she deserves?
While I’m dubious that the assumption on the left that a judge with experience as a defense lawyer means they will get the decisions. Still, a federal defender will bring to the conference ideas that challenge false prosecutorial assumptions (Hi Sam) and expand the breadth of experience that goes into opinions. And perhaps even more importantly, Judge Jackson has trench experience, which is vital to enlighten those black-robed dilettantes how their decisions play out in the real world, in the hands of real cops, lawyers and district court judges.
It may turn out that if Justice Breyer decides to retire, or another vacancy occurs, Judge Jackson won’t end up as the nominee. That has yet to be seen. But for Mitch McConnell to say in advance that if he holds the reins no Biden nominee gets a shot smells every bit as wrong, dishonest and misguided as the cries to load the Court with reliable ideologues of the left.
*Tuesday Talk rules apply.