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Tie in committee is barely a blip in Ketanji Brown Jackson’s road to confirmation

Drawing out the process without spelling its end, the tie vote on Judge Ketanji Brown Jackson in committee means only that the Senate must hold another vote.

WASHINGTON (CN) — The Senate Judiciary Committee split on party lines Monday over whether to advance Ketanji Brown Jackson's nomination to the Supreme Court to the full Senate, putting the confirmation process in a minor snarl that Democrats can still solve with yet more procedure.

Democrats and Republicans have equal control over the body, leaving it deadlocked early this evening over whether to recommend Jackson's confirmation to the Senate. This puts up an added hurdle on Jackson's journey to the highest court, but Democrats have the numbers to overcome the bump in the road with another vote that's expected late Monday night.

Tie votes in the committee on Supreme Court nominees are rare, though a tie on Jackson's nomination was predictable in the divided committee where considering judicial nominees have become an increasingly political affair.

In the past 50 years, the panel has only been deadlocked on whether to advance the nomination of one other prospective justice, Clarence Thomas. At the time of Thomas' nomination to the court, he faced allegations from Anita Hill of sexual harassment.

Democrats have lauded Jackson's résumé, which includes time as a federal public defender, an attorney in private practice, a federal district court judge, a member of the U.S. Sentencing Commission, and, most recently, a judge on the United States Court of Appeals for the District of Columbia. She also served as a law clerk for Justice Stephen Breyer, whom she is set to replace on the court after his retirement this summer.

Jackson's prospective confirmation would make her the first Black woman to serve as a Supreme Court justice and the first justice with experience as a federal public defender. But her confirmation would not alter the ideological makeup of the court.

"These critical experiences bring a missing perspective to the court and it's truly unfortunate that some are trying to use them as reasons to vote against her. These baseless attacks are belied by the broad support for Judge Jackson's nomination from across the political spectrum," Chairman of the Judiciary Committee Dick Durbin said Monday, citing endorsements Jackson has garnered from law enforcement organizations and prosecutors.

She has the backing of Senate Democrats, but, as signaled by the committee's vote, her nomination does not have the same support from Senate Republicans. Senator Susan Collins of Maine is the only Republican so far who has voiced support for Jackson's nomination, though Senators Mitt Romney of Utah and Lisa Murkowski of Alaska have yet to announce their positions.

With the expected support of at least 51 senators, Jackson's confirmation is all but certain but it remains a tense and political journey as the finish line draws near.

Senator Lindsey Graham of South Carolina, a Republican on the committee who previously voted to confirm Jackson to three other federal positions, came out against her ascendancy to the Supreme Court last week, accusing her of ruling in cases based on desired outcomes, not the law itself, and being overly lenient when handing down sentences in cases dealing with child pornography, an accusation that has repeatedly been disproven.

"I'll vote no, the first time I've ever voted against any Supreme Court nominee," Graham said Monday.

Graham accused Jackson of being an "activist to the core," a criticism traditionally lobbied against Democratic nominees to the bench and used to depict nominees as advocates who defy the text of law.

"If she wants the outcome, she's going to find it," Graham said.

He also criticized her representation of four Guantanamo Bay detainees during her time as a federal public defender. Jackson argued that her clients had been treated in violation of the Geneva Conventions during their detention, and all four were eventually released. None of them were convicted of crimes.


Throughout Jackson's confirmation hearings, Republicans, including Graham, accused Jackson of being soft on crime and defying federal sentencing guidelines when determining prison time for defendants in child pornography cases. Jackson's sentencing decisions were in line with those made by other federal judges in similar cases, but Republicans have clung on to these warped accusations in their stance opposing Jackson's confirmation.

"If Judge Jackson is confirmed, I believe she will prove to be the most extreme and the furthest left justice ever to serve on the United States Supreme Court," Republican Senator Ted Cruz of Texas said.

Notably, Jackson's description of her judicial methodology during her nomination hearing drew parallels to that of Bush appointee Chief Justice John Roberts, who said it's the job of a judge to call balls and strikes.

“I am acutely aware that, as a judge in our system, I have limited power, and I am trying in every case to stay in my lane,” Jackson said during her hearing last month.

Jackson said “there is not a label” for her judicial philosophy, but she rejected the idea of a living constitution and said it's important to take into account the text of a law "at the time of the founding and what the meaning was."

Still, Republicans have labeled her a judicial activist, with Senator Chuck Grassley, the ranking Republican on the committee, coming out against her confirmation on Monday, citing her judicial philosophy and refusal to place a label on her means of judging cases.

"Having carefully studied her record, unfortunately, I think she and I have fundamental, different views on the role of judges and the role that they should play in our system of government. Because of those disagreements, I can support her nomination," Grassley said.

Senator Cory Booker, a Democrat from New Jersey and the only Black senator on the panel, expressed frustration at Republican criticisms of Jackson's record.

"How qualified do you have to be?," Booker asked, referencing Jackson's two Harvard degrees, clerkships with Justice Breyer and two other federal judges, and career as both a trial and appellate court judge.

Quoting poet and civil rights activist Maya Angelou's famous poem, "And Still I Rise," Booker said, "You may try to write me down in history with your bitter, twisted lies, you may trod me in the very dirt, but still like dust, I rise."

"Rise, sister Jackson, rise, Judge Jackson, all the way to the highest court in the land. And when we have that final vote, I will rejoice, ancestors will rejoice and we will say, 'Lord, this is a day you have made,'" Booker said.

Senator Richard Blumenthal, a Democrat from Connecticut, warned that deadlocking over Jackson, a woman without personal scandal and with a law career that checks many of the traditional boxes of a high court nominee, further eroded the norms of the Supreme Court.

"If we treat the Supreme Court like another political branch, it will become one. It is a self-fulfilling prophecy and right now, we are fulfilling it. The United States Congress — most especially, my Republican colleagues — are fulfilling that prophecy by engaging in a party-line vote against a nominee that is superbly qualified by character and intellect, and will make history as the first Black woman to be confirmed," Blumenthal said.

The tied committee vote does not doom Jackson's confirmation, but adds another vote to the Senate's to-do list and further delays a final vote on securing her seat to the nation's highest court.

Senate Majority Leader Chuck Schumer is expected to set up a vote for the Senate to move Jackson's nomination out of committee and on to the floor as early as Monday evening. It will be the first time since 1853 the Senate has had to vote to discharge a Supreme Court nominee from committee.

After getting her nomination out of committee, Schumer will pave the way for a vote to confirm her to the Supreme Court as early as Thursday, before the Senate begins its Easter recess.

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