Senators decried lack of civility. Then the Jackson hearings began.

The hearings this week to confirm Judge Ketanji Brown Jackson to the United States Supreme Court are both historic and the resumption of what has become an almost annual tradition.

The fourth nominee to the nation’s highest court to come before the Senate Judiciary Committee in five years, Judge Jackson is also the first Black woman to ever be nominated. If confirmed, she would also become the first justice since Thurgood Marshall retired in 1991 to have experience representing criminal defendants. 

She would replace Justice Stephen Breyer, whom she clerked for, and to whom she paid tribute in her opening statement on Monday.

“I could never fill his shoes. But if confirmed, I would hope to carry on his spirit,” she said. If confirmed, she added, “I commit to you that I will work productively to support and defend the Constitution and the grand experiment of American democracy that has endured over these past 246 years.”

But like the three nominees before her – all confirmed after Senate Republicans blocked President Barack Obama’s nomination of Merrick Garland for almost a year – she is expected to have a narrow path to confirmation. Like Justices Neil Gorsuch (54 votes), Brett Kavanaugh (50 votes), and Amy Coney Barrett (52 votes), observers see a close – perhaps even party-line – vote. If so, she could become the first justice ever confirmed by a tiebreaking vote by a vice president.

In decades past, Supreme Court nominees would routinely be confirmed with unanimous or near-unanimous votes. Conservative and liberal icons Antonin Scalia and Ruth Bader Ginsburg, for example, received 98 and 96 votes, respectively. The Senate has seen significant procedural changes since then, and a marked increase in polarization, but in opening statements on Monday several senators lamented that the Supreme Court confirmation process had devolved into bitter partisan theatrics in recent years.

The hearings this week will hopefully be different, senators said. “We won’t try to turn this into a spectacle,” said Sen. Chuck Grassley of Iowa, the committee’s ranking Republican. “Good news on that front, we’re off to a very good start.”

“What we will do, however, is ask tough questions,” he added.

The tone on Monday “gives you a sense of what it’s going to look like, and [it’s] better than it has been recently,” says Carl Tobias, a professor at the University of Richmond School of Law who studies judicial nominations.

But these hearings, and the final vote, will likely also illustrate that the days of broad-consensus Supreme Court confirmations will not return anytime soon.

“There needs to be a truce in the confirmation wars, but I don’t see where that comes from,” says Professor Tobias. “There should be a celebration here of someone so capable as a nominee. But I guess we’re just past that point.”

Based on the hearings so far, the tone is largely polite and respectful, but the questions are decidedly partisan. Republican senators grilled her on hot-button issues like child pornography sentencing – a charge of leniency debunked by multiple legal experts and called “disingenuous” by the conservative National Review – and her advocacy for accused terrorists held at Guantánamo Bay.

That, however, might still mark an improvement over the Barrett or Kavanaugh hearings, the latter of which Republicans point to as a nadir for civility amid past sexual assault allegations against the nominee. Democrats revealed allegations of sexual assault days after his confirmation hearing, and a subsequent hearing on the allegations – featuring Justice Kavanaugh and one of his accusers, Christine Blasey Ford – is considered by many to be one of the most rancorous in Senate history.

For their part, Democrats decry what they call Republican hypocrisy when it comes to election-year nominations. In 2016, the GOP blocked the nomination of Mr. Garland, now the attorney general, for almost a year, under the rationale that whoever won the presidency should fill the vacancy. Then in October 2020, after early voting had begun in the presidential election, the GOP-led Senate confirmed Justice Barrett in less than a month.

High stakes, high tensions

With a lifetime appointment to the country’s highest court at stake, Supreme Court confirmation hearings are understandably contentious.

Thus, it’s perhaps not surprising that Sen. Lindsey Graham of South Carolina – one of three Republicans who voted to confirm Judge Jackson to the U.S. Court of Appeals for the D.C. Circuit – seemed to storm out of the hearing today after aggressively questioning her about her Protestant faith and her work with Guantánamo detainees.

In particular, he complimented her work as a federal public defender representing Guantánamo detainees, but criticized her work on the same issues in private practice. He referenced a 2009 amicus brief she co-wrote while in private practice – in a Supreme Court case that later became moot – arguing that it was illegal to indefinitely detain lawful U.S. residents as “enemy combatants.” 

“If that brief had been accepted by the [Supreme Court], it would be impossible for us to fight this war,” said Senator Graham.

“There’s some people that are going to die in jail in [Guantánamo] and never go to trial for a lot of good reasons,” he added. “If you had had your way, the executive branch ... would have to make a decision of trying them or releasing them.”

Judge Jackson maintained that she was making the argument of her clients, which included the libertarian Cato Institute and the conservative Rutherford Institute. When challenged later by Sen. Dick Durbin of Illinois, the chair of the Judiciary Committee, Senator Graham retorted angrily, pointing at Judge Jackson and saying that advocates “would destroy our ability to protect this country.”

This line of questioning had been previewed before this week, and refuted by some Guantánamo experts.

In a post on the Lawfare blog, Benjamin Wittes wrote that Judge Jackson’s representation of Guantánamo detainees, and her work advocating for changes to America’s post-9/11 detention policy, “is not a reasonable basis to oppose her nomination.”

“To suggest that the Supreme Court should not have among its justices lawyers who advocated on behalf of detainees maligns the patriotism of people who have taken honorable positions on contested questions,” he added, “and demands a uniformity of background and view in judicial service from which the judiciary would not benefit.”

There have only been a few Supreme Court justices in U.S. history with criminal defense experience, so these questions are fairly novel. And these questions should be on the table – within reason, according to Ilya Somin, a professor at George Mason University’s Antonin Scalia Law School.

There’s no evidence Judge Jackson is sympathetic to terrorists, so “in this case it’s not fair and reasonable,” he adds. “But I don’t want to make the claim that never asking lawyers [those] questions is reasonable.”

It would be unreasonable to challenge a lawyer for representing a Nazi in a free speech case because of its implications for speech rights, for example, but not for a lawyer representing a Nazi because they are also a Nazi, he continues.

Seeds of contention

In 1987, Robert Bork’s nomination failed in a 42-58 vote due to Democratic concerns over his views on civil rights. To “bork” someone – meaning to obstruct “by systematically defaming or vilifying them” – entered the dictionary. In 1991, allegations that he sexually harassed a former employee led to Justice Clarence Thomas’ confirmation by 52 votes – a process he described at the time as “a high-tech lynching.”

Such contentious nominations, once the exception, have in recent years become the rule.

The events of recent confirmation hearings are “undoubtedly” affecting Judge Jackson’s hearings, says Steven Schwinn, a professor at the University of Illinois, Chicago Law School.

“Republicans are visibly angered by how Kavanaugh was treated ... and that is clearly animating their behavior toward Judge Jackson. Democrats, on the other hand, have their own ax to grind with the Republicans,” he adds.

The tone and temperature have been dialed down this week, particularly from the Kavanaugh hearings, Professor Schwinn agrees. But the hearings “will [feature] political showmanship, and senators trying to score political points,” he says, “at the expense of the credibility of the Supreme Court, and at the expense of ‘we the people.’”

“Frankly it disserves we the people who are watching,” he adds. “Because we want to learn about the Constitution and about constitutional interpretation. And this isn’t doing it.”

Clarification: Context around Ilya Somin’s quote has been updated.