WASHINGTON (CN) — Judge Ketanji Brown Jackson took the national spotlight nearly a month ago when President Joe Biden nominated her to be the first Black woman on the high court. Next week the Senate Judiciary Committee will begin the process of offering advice and consent to the nomination.
The hearings will begin on Monday with statements from committee members and Jackson herself. On Tuesday and Wednesday Jackson will face questioning from members, and on Thursday members of the American Bar Association and outside witnesses will testify before the committee. As with all other high court nominees, the committee will also hold a closed-door session to discuss the findings of a background investigation on Jackson conducted by the FBI.
During hearings, Supreme Court nominees generally face questions about their judicial philosophy, previous experience and what kind of justice they'd be on the court. While Jackson has already endured senators' questions to earn her seat on the D.C. Circuit and the U.S. District Court before that, she’ll still face strict scrutiny for a seat on the high court’s bench.
Senators' questions for Jackson will likely fall into one of two categories.
“What the senators will do will be a mixture of asking real questions and political theater,” Frederick Lawrence, a distinguished lecturer at Georgetown Law, said in a phone call. “This is usually the case where the party that is opposed to the nominee, or not the president's party, will try to use this as an opportunity to make some points whether they like the outcome or not. In this case, you have several Republican senators who are plausible candidates for the Republican nomination for president 2024. This is a really good opportunity to get a lot of people listening to what you say.”
One area of Jackson’s background that could be of interest is her work as a public defender.
Many have lauded Biden’s choice to put a public defender on the bench, saying it would help diversify the high court.
“For too long, the federal bench has lacked judges with experience as public defenders, civil rights attorneys, legal aid lawyers, and those who’ve advocated for working people,” Massachusetts Senator Elizabeth Warren wrote on Twitter. “Justice requires judges who represent every corner of the legal profession and reflect all Americans.”
But others have used the opportunity to criticize those who Jackson has defended. Jackson’s defense of a Guantanamo Bay detainee was brought up last year during her hearings for the D.C. Circuit. In written responses, senators asked if her work resulted in more terrorists being released back into the fight against the U.S.
Senate Minority Leader Mitch McConnell said Jackson’s record as a public defender portrayed a “special empathy for convicted criminals” but added, “nobody is saying public defenders ought to be disqualified from judicial service.”
But it doesn’t appear Republicans are united on attacks to Jackson’s public defender work.
“I’m not going to criticize her for any client she’s represented,” Louisiana Senator John Neely Kennedy said. “We’ve all represented clients that we didn’t agree with and in some cases didn’t even like, but everybody has the right to counsel.”
Jackson’s work on the United States Sentencing Commission has also been questioned by senators. In a lengthy Twitter thread Missouri Republican Senator Josh Hawley made unfounded claims that Jackson has “a pattern of letting child porn offenders off the hook for their appalling crimes.” Hawley cites Jackson’s work on the Sentencing Commission in apparent support for these claims.
The White House quickly responded to Hawley’s accusations, noting that they are based on a report unanimously supported by Republicans on the U.S. Sentencing Commission.
“This is toxic and weakly presented misinformation that relies on taking cherry-picked elements of her record out of context — and it buckles under the lightest scrutiny,” Andrew Bates, a White House spokesperson, said in a statement. “It’s based on a report unanimously agreed to by all of the Republicans on the U.S. Sentencing Commission, on selectively presenting a short transcript excerpt in which Judge Jackson was quoting a witness’s testimony back to them to ask a question, and on omitting that her rulings are in line with sentencing practices across the entire federal judiciary regarding these crimes.”
Jackson will likely get questions about recusing from cases before she’s even confirmed. The high court is set to hear a challenge to affirmative action involving Harvard University next term. Jackson sits on Harvard’s Board of Overseers, which some say would give her a conflict of interest should she be a justice on the case.
Many questions from senators will concern how Jackson would rule on the bench, but they will likely also take the opportunity to question her on issues like court-packing or allowing cameras in the courtroom.
Jackson’s role will be to try to answer the senators' questions without revealing much.
“She, like justices before her going all the way back to the 1980s, will be very, very, very careful,” Lawrence said.
It's likely that Jackson already has the votes to be confirmed so her job will be to make sure she doesn’t make any controversial statements that might cause a senator to change their mind. She will also be very careful to avoid making any statements expressing opinions on topics that could come before the court.
The hearings will give Jackson an opportunity to not only answer senators’ questions but also speak to the American people. A new Pew Research poll found that 44% of the public said the Senate should confirm Jackson, with only 18% opposed to her confirmation.
“I think that that's a good audience to be thinking about — not just this group of senators in front of her — but the American public,” Lawrence said. “I think what she has to communicate is that she is fair but she's committed to the law, and she doesn't come with a set of preconceived notions. That her experience qualifies her for the court and will be for the benefit of the court. So I think that people who are prepared to listen will come away impressed.”
Once the hearing is concluded, the committee will have to vote to send the nomination to the full senate. The committee is evenly split so, if the vote falls along party lines, Democrats can advance the nomination without any Republican support.
Before the full Senate, a rule change will allow Jackson to be confirmed by a simple majority vote. In an evenly divided Senate, Jackson will not need to win over any Republicans to be confirmed, but some Republicans already voted for her when she was nominated to the D.C. Circuit last June. If Jackson were to only receive votes from 50 Democrats, Vice President Kamala Harris would break the tie.
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