Biden’s Supreme Court pick set to make history

Judge Ketanji Brown Jackson, President Biden’s Supreme Court nominee, is set to make history Monday when she kicks off a days-long hearing before the Senate Judiciary Committee.

Jackson’s nomination represents several firsts: If confirmed, as she’s expected to be, she would be the first Black woman on the Supreme Court and the first justice to have worked as a public defender. 

Her confirmation would also hand Biden and Senate Democrats, including Majority Leader Charles Schumer (D-N.Y.) and Judiciary Committee Chairman Dick Durbin (D-Ill.), a major win and mark the pinnacle of their year-plus effort to put their own stamp on the federal judiciary as they head toward a November election with control of the chamber up for grabs.

Schumer touted the televised hearings as a chance for Jackson to introduce herself to the country and to make history as the first Black woman to ever appear before the committee as a Supreme Court nominee.

“To date, never has an African American woman come before the Judiciary Committee for consideration to this highest court; Judge Ketanji Brown Jackson will be the very first,” Schumer said. 

“And the public will also see that her credentials, her vast experience in both public and private practice, and her near nine years on the federal bench make her stupendously qualified to bear the title ‘justice,’” he added. 

The hearings come after Jackson spent weeks participating in a largely choreographed first step in the confirmation process: one-on-one meetings with senators. She’s met with every member of the Judiciary Committee and 44 senators in total ahead of the hearing, with more meetings expected before a final Senate vote. 

Despite the low-key confirmation process so far, the hearing is poised to have fireworks after Sen. Josh Hawley (R-Mo.), one of a handful of GOP senators on the panel viewed as having presidential ambitions, accused Jackson of being soft on sex-related offenses. 

“I can’t find a single case of her time on the federal bench in which she sentenced a child porn offender to the recommended guidelines. Not one. If there is one, I haven’t found it, and I’d be happy to be wrong,” Hawley said. 

“She’s been touted as someone whose record on the bench is what qualifies her for the court. So she’s going to have to answer these questions, and so far I haven’t heard a single answer from the White House. … I hope they are prepared for this, because this is really serious,” Hawley added, predicting that it would get “the committee’s attention.” 

Hawley’s accusation drew scathing pushback from Durbin and the White House. 

“Judge Jackson is a proud mother of two whose nomination has been endorsed by leading law enforcement organizations, conservative judges, and survivors of crime. 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,” said Andrew Bates, a spokesperson for the White House. 

Bates added that in an “overwhelming majority of her cases involving child sex crimes, the sentences Judge Jackson imposed were consistent with or above what the government or U.S. Probation recommended.”

Hawley said he was not aware of the cases when he met with Jackson earlier this month. He raised the accusations in a string of tweets on Wednesday night and subsequently doubled down via interviews with reporters in the Capitol, TV hits and press releases from his office. 

Asked about the tweets, Durbin immediately began shaking his head. 

“I can’t believe it. … They make this personal attack on her and accuse her of being soft on child porn. It’s a lie. Consider the source. I mean, it’s coming from the right wing, playing to the right wing. It is not respectful. It isn’t true,” Durbin said. 

Asked if Democrats were planning for how to rebut Hawley during the hearing, Durbin added: “Sen. Hawley has a reputation … [as] a cheerleader for the insurrectionist mob. I don’t doubt that he’ll try to make an issue out of this.”

But Hawley isn’t the only GOP senator expected to raise the issue during the hearing. 

Sen. Mike Lee (R-Utah), a member of the committee, accused the White House of having a “whataboutist response,” adding that “we need real answers.” An aide to Sen. Marsha Blackburn (R-Tenn.), another member of the committee, also predicted that she was likely to raise the issue.

“I think we can expect that Senator Blackburn will want to probe some of that with her,” Blackburn’s office said. 

Republicans have struggled to land on a unified strategy on Jackson’s nomination, though most of the caucus is expected to vote against her. The Senate previously confirmed Jackson last year to serve on the federal appeals court for the D.C. circuit. Three GOP senators voted for her at the time: Sens. Susan Collins (Maine), Lisa Murkowski (Alaska) and Lindsey Graham (S.C.). 

Democrats are hopeful that they’ll pick up at least one GOP vote, but if all 50 of their members remain unified, and are present, they could confirm Jackson without Republican help by letting Vice President Harris break a tie. Though Justice Stephen Breyer isn’t expected to retire until the summer, Democrats want to have Jackson’s confirmation vote before leaving for a two-week break scheduled to start on April 8.

Top Republicans have privately warned that going all-in against the first Black female nominee, particularly one whose confirmation they can’t stop, could backfire and that other issues, including the economy, play better for the party heading into the November elections. The Supreme Court has also been on the backburner on Capitol Hill, where much of the focus has been on Russia’s invasion of Ukraine. 

Radio host Hugh Hewitt told Senate Minority Leader Mitch McConnell (R-Ky.) that Democrats were hoping Republicans would “overplay their hand” against Jackson and make a “misstep” and asked if the Senate GOP conference was aware of the dynamic.

“We do, and I think Judge Jackson will be treated respectfully,” McConnell said. “I think the questions will be appropriate, and I think you’re right. I think she’s highly likely to be confirmed with very few Republican votes because of her philosophy, not anything else.” 

Aside from the questions about child porn cases, Republicans are signaling they could try to tag Jackson as “soft on crime” by focusing on her work with Guantánamo Bay detainees, a sentencing commission and her time as a public defender. They are also expected to ask her about progressive calls to expand the Supreme Court. 

Republicans have raised all four issues with her during their closed-door meetings in the lead up to the Judiciary Committee’s hearings. 

“The liberal groups that are so excited about her nomination are the very ones that have been calling for packing the court or term limits on the court. So in a sense, that’s her base,” McConnell added. “So that’s a double reason why she won’t answer questions about attacks on the court, which I think would be appropriate for her to comment on.”