Senate gears up for confirmation of first Black woman to Supreme Court

President Biden’s Supreme Court pick, Ketanji Brown Jackson, is expected to be confirmed by the mid-April recess and stands a good chance of picking up bipartisan support to become the first Black woman to serve on the high court.

Jackson will hold her first round of meetings with senators Wednesday when she will sit down with Senate Minority Leader Mitch McConnell (R-Ky.), Senate Judiciary Committee Chairman Dick Durbin (D-Ill.), Judiciary Committee ranking member Sen. Chuck Grassley (R-Iowa) and Senate Majority Leader Charles Schumer (D-N.Y.).

Democrats say their goal is to get her seated on the Supreme Court before the April recess, which begins on April 9. She would replace the retiring liberal Justice Stephen Breyer.   

Durbin told reporters Monday he hasn’t yet set the date of the confirmation hearing but that he’d like to get everything wrapped up before the Senate leaves for the two-week recess.  

He said he hasn’t begun whipping members of the Democratic caucus but hopes that all of them will support the nominee. He also said he thinks there’s a small group of Republicans who might also vote “yes.”  

“At this point I don’t have any Republicans committed to her. I’m reaching out to any number that includes some of the obvious choices, but there are some that are not so obvious and I’m not going to tell you their names,” he said. “I’m hoping I can appeal to them at different levels concerning this particular nominee.” 

Senate Republicans say Jackson is likely to have enough votes to win confirmation unless an unforeseen controversy erupts. Democrats think there’s a good chance that moderate Sens. Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska), and possibly additional Senate Republicans, will vote to confirm her.   

Durbin said he’s not going to rush the nominee through the process in deference to Collins and other GOP senators. 

“We’re not trying to set any speed records here. We want to do it the right way,” he said. “Not only Sen. Collins but the American people want to see a fair process.”

Durbin will wait for Jackson to return her Senate questionnaire and then meet with Grassley, Schumer and possibly McConnell to lay out the schedule for hearings, a committee vote and a floor vote.   

Josh Blackman, an expert on constitutional law and the Supreme Court at South Texas College of Law Houston, said Republicans “are going to try to get their punches in but then they’re going to let her through with a couple of Republican votes.”   

“I think Republicans will put up a fight knowing they’re going to lose,” he said. “She’ll get though,” barring the emergence of a controversy.”

Collins, Murkowski and Sen. Lindsey Graham (R-S.C.) voted with every member of the Democratic caucus last year to confirm Jackson to the D.C. Circuit Court of Appeals, though Graham recently expressed disappointment that Biden didn’t pick South Carolina District Judge J. Michelle Childs.   

Graham tweeted last week that Jackson’s selection meant “the radical Left has won President Biden over yet again.”  

Durbin on Monday warned that personal attacks on Jackson’s character could fan partisan flames and put her and her family at risk.   

“Senators try to judge many things with nominees and one of them is temperament. Will this judge have the appropriate temperament to deal with the power that we will be giving her? And I listen to the questions from some of my colleagues and it doesn’t reflect on their temperament,” he said. “I think there’s an opportunity to be direct and pointed without being confrontational and disrespectful.”  

Durbin said a recent nominee who came before the panel was targeted with threats after Republican colleagues posted on Twitter statements slamming her testimony.  

He noted the nominee was asked “hard questions over and over again” by Republican colleagues and “one or more of the senators on the other side decided to put on Twitter some statements about her testimony.”   

“There were threats to her family after that,” he said. “It’s hard enough to ask people to join up for public service. … To subject them to that kind of abuse is inexcusable. In a high-profile hearing like this, I hope my colleagues on both sides will go out of their way to avoid that.”    

Carrie Severino, the president of the conservative Judicial Crisis Network, pointed to two of Jackson’s rulings that were reversed by a higher court when she served as a judge on the federal district court for Washington, D.C.   

The D.C. Circuit Court overturned Jackson’s 2019 decision blocking a Department of Homeland Security policy under the Trump administration that was intended to speed up deportations.   

That court also reversed her 2018 ruling that struck down three Trump executive orders that rolled back civil service protections for federal workers.   

Another part of her record expected to draw scrutiny from Republicans is her work as a federal public defender from 2005 to 2007 and her work on behalf of suspected terrorists detained at Guantánamo Bay prison.   

Republicans are also looking closely at Jackson’s November 2019 ruling in favor of House Democrats who wanted to subpoena former Trump White House counsel Don McGahn. Jackson found that he and presidential advisers did not have absolute immunity from testifying before Congress.   

She wrote that “presidents are not kings” and that current and former White House employees “work for the people of the United States and that they take an oath to protect and defend the Constitution of the United States.”   

That kind of rhetoric is already drawing fire from conservative critics, who say it’s evidence of Jackson’s liberal political leanings.   

“I was concerned by the really political language that she seemed to be using there in terms of criticizing President Trump. It’s one thing to say, ‘You don’t actually have the ability to say you can’t show up for a subpoena.’ She went on to basically say he was acting like a king, not a president. It was very intemperate language,” Severino said.   

Severino said the 53-44 bipartisan vote to confirm Jackson to the D.C. Circuit in June doesn’t mean her confirmation to the Supreme Court will proceed as smoothly.   

“The appellate confirmation process and the Supreme Court confirmation process are very different beasts. One example is Justice Clarence Thomas was confirmed by a voice vote to the D.C. Circuit,” she said, noting that Thomas’s Supreme Court nomination became one of the biggest judicial confirmation battles in Senate history.   

“It just illustrates that there’s a different standard” for a Supreme Court confirmation fight, she added.   

“It’s going to definitely be a more contentious process than the appellate nomination was and that’s just always the way it is,” she said.