It is hard for me to put into words the extraordinary pride and emotion I feel for the historic confirmation of Justice Ketanji Brown Jackson, despite the disgraceful treatment she received from some Republican senators. Jackson’s intelligence and integrity, along with the importance of the first Black woman being confirmed to the nation’s highest court, which heads the third branch of government, was awe-inspiring. The disgust I have for how she was treated by some is matched by what the words and deeds of Republican leadership tell us about the future of our democracy. Senator Lindsey Graham and Senate Minority Leader Mitch McConnell have made their Supreme Court strategy clear, and it elevates the work we must do to protect democratic practice along with rights and justice.
Graham, who voted to confirm Jackson to the D.C. Court of Appeals less than a year ago, said something truly extreme: “If [the Republicans] were in charge, [Jackson] would not have been before [the Judiciary] committee. You would have had somebody more moderate than this.” Graham is asserting that Republicans, rather than the duly elected president to whom the Constitution grants nomination powers, can and should define who is moderate. We actually don’t know if Jackson is a progressive or not. The mere fact that she had served as a defense attorney appears to have labeled her one.
But, of course, the suggestion that “progressive” is somehow extreme is also quite troubling. It suggests that a record of considering fair sentencing and rights is itself outside the mainstream. In fact, polling shows that most of us agree on everything from the outsize power of corporations to the fact that same-sex marriage should be a right or that we should have background checks on guns, and much more.
It turns out Graham was not speaking out of turn. McConnell said, “[President Biden], who ran as a moderate and who has governed as Bernie Sanders would, would have to spend the last two years of his term being a moderate.” Bernie Sanders? Many Sanders supporters must have been roiling at that comparison. Biden is no lefty, but a moderate, as McConnell acknowledges and knows. Consider Sanders’s displeasure with Biden over his Pentagon expansion plan. Is it that Biden championed childcare for working families or moving to renewable energy? Many moderate Americans would enjoy both. Similarly, the attempt to cast Jackson as a radical completely ignored her record of siding with Republicans in the U.S. Sentencing Commission and her support from law enforcement. The disinformation is more akin to Trumpian tactics than traditional partisan disagreements on judicial philosophy.
The judicial philosophy that is a conservative litmus test for judicial nominations is much more troubling, and a part of Republicans’ design for an ideological court. Senator Ben Sasse, who was respectful and complimentary to Jackson at her hearing, voted against her confirmation, he said, because they “disagree on judicial philosophy.” His is originalism. The conservative version of it asserts the meaning of the Constitution is fixed in the colonial era. Senators get to have different perspectives on legal philosophy. Asking about and even debating legal philosophy can be a good and useful thing. Even originalism is something that is neither bad nor good, depending on what we mean by it.
Consider Jackson’s response to Sasse on originalism. She said, “I believe that it is appropriate to look at the original intent, original public meaning of the words, when one is trying to assess [a constitutional provision] because, again, that is a limitation on my authority to import my own policy views. But there are times when the meaning—unreasonable searches and seizures, due process—looking at those words [is] not enough to tell you what they actually mean.” Originalist questions can be appropriate, but it’s a doorway, not a cage. Jackson is espousing approaches as tools, not dogma, and it is the dogma that is extreme.
Why? Take Dred Scott. Any student of race in the United States and our history of slavery knows the infamous name. He was a Black man born into slavery but who lived in a state where it had been outlawed. Scott sued for his freedom. The Supreme Court, with a majority of justices from slave states, proclaimed that Scott was not a citizen of the U.S. because he was a slave and that Congress had no power under the Constitution to outlaw slavery in the territories. Scott would remain a slave, and a lawyer named Abraham Lincoln, incensed by the opinion, began to rise in the Republican Party by denouncing it. He would lead Republicans into the White House just four years later.
The Dred Scott case, among the most denigrated decisions in the history of the U.S. Supreme Court, was based on originalism. Justice Roger Taney, who authored the Dred Scott opinion, argued that the Founding Fathers believed Black people to be “beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect.” Yes. That’s originalism. And it is a kind of legal fundamentalism that is a direct counter to the justice and equality we have struggled to win because our notions of them have evolved from a time when Black people were considered three-fifths of a person.
I do not suggest or believe that McConnell, Graham, or even Sasse would defend the Dred Scott decision. But it is undeniable that the very litmus test they press has dangerous possibilities for our hard-won rights regime. The rights fought for and earned through a civil war and movements that followed ushered in historic Supreme Court decisions. Justice Earl Warren’s Supreme Court gave us the landmark decision of Brown vs. Board of Education and further developed the right to privacy that led to abortion rights.
The truth is this Black woman, qualified as she is to have earned confirmation, was maligned not for her views, which were within the judicial mainstream, but because McConnell’s political strategy is to advance a conservative ideological design by any means necessary. He denied a white, male centrist, Merrick Garland, a confirmation hearing and now suggests a Black woman is an extremist. The gaslighting effort to design an activist conservative bench is what we should find extreme.
A Republican leadership that would deny a Democratic president a hearing on a qualified judicial nominee denies “we the people” a national conversation over issues like balance of powers, parental rights, public safety, and more. It ignores that elections have consequences and the norm that presidential nominees should get a hearing if qualified. It also denies “we the people” our opportunity to consider and debate what is too ideologically fringe or what behavior is too disturbing for the federal bench. We must recognize and confront such a destructive process and call it what it is: extreme. It has serious consequences for our constitutional order and established rights, and we must not stand for it.