Twenty-eight years ago, Justice Stephen Breyer was confirmed to the Supreme Court by an 87–9 vote. Most Republicans, including Senators Mitch McConnell and Chuck Grassley, voted to confirm Breyer, whose nomination had been shepherded through the Senate Judiciary Committee by then-Senator Joe Biden.
Nearly three decades later, President Biden’s chosen successor for Breyer’s post, Judge Ketanji Brown Jackson, is unlikely to obtain more than a few Republican votes at best. The previous three justices confirmed to the court, nominated by President Donald Trump, were confirmed along extremely narrow margins with nearly unified Democratic opposition; this came after Republicans blocked Merrick Garland from receiving a confirmation vote after the death of Justice Antonin Scalia in 2016.
But while the norms of bipartisan backing for Supreme Court nominees have long been broken, certain traditions remain, including the often ceremonial meetings between the nominee and senators. Guided through the labyrinthine halls of Capitol Hill by a so-called “sherpa”—in Jackson’s case, former Alabama Senator Doug Jones—the nominee on Wednesday met with senators of both parties, aiming to engender goodwill as much as explain her judicial philosophy. These included Senate Majority Leader Chuck Schumer; McConnell, now the minority leader; Judiciary Committee Chair Dick Durbin; and Grassley, now the ranking member of the Judiciary Committee.
After a brief photo op, Schumer met with Jackson for a little less than half an hour, telling reporters afterward that they had primarily spoken about her background and her family history. “You can see it when you meet her, that she has real empathy. I think it’s very important in a judge, because you’re having two sides clashing over whatever the issue is, to be able to empathize and walk in the other person’s shoes,” Schumer said. He also said that he hoped to have Jackson confirmed before the Senate recessed for Easter in mid-April; Durbin announced confirmation hearings would begin the week of March 21.
McConnell was more laconic in his response. When asked by The New Republic how the meeting with Jackson went, the minority leader replied simply: “Good meeting.”
In theory, Republicans on the committee could deny a quorum during Jackson’s confirmation hearings, preventing her nomination from going forward, at least temporarily. Most Republicans have insisted that they will follow the norms of conduct in meeting with and attending confirmation hearings for Jackson, contrasting their behavior in the minority with that of Democrats. Republican senators are still seething about what they see as the mistreatment of now-Justice Brett Kavanaugh, who was subject to additional hearings in 2018 after accusations of sexual misconduct came to light. (Kavanaugh was confirmed by a vote of 50–48.)
“I can assure you of one thing: We’re not going to have a comedy and a tragedy like the Democrats demonstrated to Kavanaugh. We’re going to be very forthright in our questioning, but we’re going to be polite and we’re not going to get down in the gutter like they did with Kavanaugh,” Grassley told Fox News over the weekend.
But on Wednesday, in conversation with reporters, he questioned whether the planned schedule for Jackson’s hearings provided enough time for all Republicans who want to meet with the judge to do so. “I haven’t had Republicans tell me how many want to meet with her, but I know all the members of the committee do. And I presume that fits into that timeframe. But what about the other 39 Republicans? I think we’ve got to take that into consideration,” Grassley asked. (Justice Amy Coney Barrett, the most recent justice to be confirmed to the Supreme Court, saw 13 days elapse between the announcement of her nomination and her first confirmation hearing.) Some Republicans on the Judiciary Committee, including Senators John Cornyn and Ted Cruz, told reporters that they planned to meet with Jackson in the near future.
Durbin told reporters that every Republican on the Judiciary Committee would have the opportunity to meet with Jackson before March 21, and that any other senator who wants to meet with her will have the opportunity to do so after confirmation hearings begin. He also urged Republicans who wished to meet with the judge to make their desire to do so known. “Don’t lurk. Don’t wait. If you want to do this, tell us right now,” Durbin said.
Three Republicans voted alongside Democrats to confirm Jackson to the Court of Appeals for the D.C. Circuit last year: Senators Susan Collins, Lisa Murkowski, and Lindsey Graham. But this does not mean that Jackson will garner support from these GOP senators to be confirmed to the Supreme Court. “I’ve been clear that previously voting to confirm an individual to a lower court does not signal how I will vote for a Supreme Court justice,” Murkowski said in a statement last week. And Graham, who had been pushing for South Carolina native J. Michelle Childs to be Biden’s nominee, lamented that Jackson’s nomination “means the radical Left has won President Biden over yet again.” (A spokesperson for Graham confirmed to The New Republic that he would be meeting with Jackson.)
But Jackson has received support from several conservative legal luminaries, including retired judges J. Michael Luttig and Thomas B. Griffith, as well as William Burck, a lawyer who represented former Trump White House counsel Don McGahn. Griffith, a George W. Bush appointee who reviewed Jackson’s decisions when she was a district court judge and he served on the Court of Appeals for the D.C. Circuit, said in a letter to the Judiciary Committee that Jackson was “immensely qualified to serve on the Supreme Court.” Despite their occasional differences, and his vote to overturn one of her rulings as a higher court judge, he said he had “always respected her careful approach, extraordinary judicial understanding, and collegial manner, three indispensable traits for success as a Justice on the Supreme Court.”
Griffith’s endorsement might have particular weight with one Republican, Senator Mitt Romney. Like Romney, Griffith is an active member of the Church of Jesus Christ of Latter-day Saints. Romney told reporters on Tuesday that he was “impressed” by Griffith’s letter, and that he found it “a very powerful and useful endorsement.” Romney, who did not vote to confirm Jackson to the Court of Appeals for the D.C. Circuit last year, said that he looked forward to meeting with Jackson and “discussing with her the questions that I have.”
“I also think this is a historic occasion and merits a careful review, which I will provide,” Romney said.
Luttig, who played a prominent role in convincing former Vice President Mike Pence to certify the results of the 2020 election, praised Jackson’s qualifications in a statement, while also encouraging Republicans to confirm her for their own political benefit. Conservatives, after all, now have a firm 6–3 majority on the court, and Jackson’s confirmation will not change that.
“Republicans should vote to confirm Judge Jackson out of political calculation, even if they cannot bring themselves to confirm her out of political magnanimity, and then proudly take the deserved credit for their part in elevating the first black female jurist to the Supreme Court of the United States,” Luttig said. (Jackson, a former public defender, also has the endorsement of the Fraternal Order of Police and former House Speaker Paul Ryan, to whom she is related by marriage.)
Schumer on Wednesday expressed the perhaps overoptimistic hope that Republicans would be persuaded to vote to confirm after they met with her. “I think she deserves support from the other side of the aisle. And I am hopeful that a good number of Republicans will vote for her, given who she is, and when they meet her, they will just be wowed as I was,” Schumer said.
Durbin, who is overseeing his first Supreme Court confirmation as Judiciary Committee chair, said he was reaching out to some Republican senators about Jackson’s nomination. “I’m not saying I’m winning them over, but I’m telling them that I hope they’ll consider it. And most of them are surprised, and maybe a little flattered, that I’d give them a call,” Durbin said. “My first appeal to them is, this is a moment in the history of the United States. And I always want to try to be on the right side of history. And I hope that they’ll consider giving her a second look if the first time around they didn’t support her.”
But although a bipartisan vote would perhaps have better optics, Jackson’s eventual confirmation is not truly in much doubt. Cornyn told reporters on Wednesday that Jackson has a “great story and a lot of the right degrees from the right places,” but said that Republicans would be more focused on her judicial philosophy.
“I also think, given the fact that she’s not going to change the balance, [the] ideological balance on the court, I think people will be respectful. And they’ll do their due diligence and ask questions, but I think we all have a pretty good idea what the outcome is likely to be unless there’s a big surprise,” Cornyn said. “We know that in all probability, she’s going to be confirmed, even if it’s just with Democratic votes.”
