WASHINGTON — By historical standards, Kitangi Brown-Jackson’s assertion would have been a mistake: the undisputedly qualified liberal Supreme Court pick, who was recently approved by the Senate to sit on a powerful circuit court and was nominated under a fully Democratic government to replace an aging liberal post-retirement long overdue
However, the process became ugly. Republicans sought to demonize her with graphic hints about sentencing her in child pornography cases. They criticized her on political issues such as critical race theory. Then they came out en masse against her, including Senator Richard Burr, a Republican senator, even as he called her “undoubtedly highly qualified, knowledgeable and experienced.”
Jackson is on her way to assertion through a thin veneer of bipartisan support: Senator Susan Collins of Maine is the only Republican she has supported so far. Senator Lindsey Graham of South Carolina, who voted to confirm her ruling last year in the US Court of Appeals for the District Court of Columbia, has overturned. She appears to be heading to a dead end in the committee, which could force Democrats to jump through an unusual hoop to bring her to the ground.
But the prospect of Jackson’s slim success obscures the continuing unraveling of the Supreme Court’s installation process, which some senators fear could be irreparably broken. While blame games are plentiful, unanimous solutions to fix them are lacking.
The GOP’s tactics reveal a party still hungry for confrontation despite five years of using unprecedented tactics to engineer the most conservative Supreme Court in a century – a 6 to 3 majority poised to reshape American law. Senators justify this in part by citing the Democrats’ treatment of conservative judges for decades. Many also insist that any candidate espouses “indigenous”, a framework for the narrow constitutional interpretation popular on the right.
Garland and the “Point of No Return”
Democrats say Senate Republican leader Mitch McConnell broke the process in 2016 when he rescinded a longstanding assumption that the president’s candidate for a vacancy gets a vote. For 10 months, he blocked President Barack Obama’s choice, Merrick Garland, saying the presidential election was too close. Then in 2020, he rushed Judge Amy Connie Barrett a week before the election after the death of liberal icon Ruth Bader Ginsburg, driving the court to the oath.
“The Merrick Garland disaster was a point of no return. Once McConnell stole that seat from Obama, I didn’t think there was any way to depoliticize the process,” said Senator Chris Murphy, Democrat of Conn. The place when Senator McConnell chose not to even listen to Merrick Garland.”
The logical consequence of McConnell’s move, Murphy said, is that the choice of the future Supreme Court may never be confirmed under the president and the Senate run by different parties, which was the basis for the Kentucky Republican blockade.
“I screamed this as loudly as I could when McConnell made that decision. I said that the outcome of McConnell’s decision would be a constitutional crisis in the end. And I think the Republicans made very clear that if they had control, they would never confirm the Democrat’s choice of the Supreme Court.”
“My fear is that we are not close to the bottom,” he said.
McConnell did not prevent any further escalation, back off Last year to say whether he would allow Biden to fill a potential vacancy on the Supreme Court with a major liberal in 2023.
Republicans bear a different set of scars and traumas, which were on display during the Jackson hearings. They remain bitter toward Robert Burke, the nominee of Ronald Reagan who was heavily criticized as an extremist and inappropriate before being voted 42 to 58 by a bipartisan majority in 1987.
McConnell said it all started when the Democrats “assassinated” Burke. Today, he said, the Senate is “in a state of total firmness” and is unwilling to defer to the president on the Supreme Court.
“No matter who represents the majority in the Senate, for the foreseeable future, senators will view the installation process as a shared responsibility,” he said Thursday at a Punchbowl News event. “In other words, the president should take the initiative, but we are full partners in this process.”
The shock of Burke, Thomas and the Republican Party
Other Republicans cited the tense fights over Justices Brett Kavanaugh and Clarence Thomas – both accused of sexual misconduct by women who made their allegations public before the Senate voted to put her on the Supreme Court. Senator Ted Cruz, a Texas Republican, was unmoved by Democrats’ fears that a divided government might not produce another confirmation.
“Well, these Democrats should re-evaluate their disgraceful behavior with Judge Brett Kavanaugh,” he said, calling it a “political circus.”
Democrats say the hearings were ugly, not because the two men were conservatives, but because they were accused of sexual misconduct. Republicans insist they have been vilified, and cite this hostility as the basis for their escalation in judicial wars.
“It really goes back to my time here as an employee — you had Burke and then shortly after that you had Thomas and these became fierce ideological battlefields,” said John Thune, a minority senator from the Senate. “The Supreme Court nominations have really become an arena for litigation about the huge differences between people about ideology in this country and I think that changed the landscape dramatically.”
The use of stalling on judicial candidates escalated until 2013, when Democrats repealed the 60-vote rule to confirm lower court judges. In 2017, Republicans shot him for Supreme Court nominations to confirm Justice Neil Gorsuch.
“We may have passed the point of no return when the great majority was eliminated and a simple majority became a requirement for the representation of judges,” said Thun.
‘Severe injuries to the court’
Democratic Senator Tim Kaine, R-Va., said Republicans’ complaints about their candidates are incomparable with their refusal to allow a hearing for Obama’s nominee in 2016 and advance their selection in 2020.
“I believe that these two acts were serious wounds to the court and this body,” he said. “But I don’t think that is fixed by simply changing the process. Because you can’t undo those two horrific mistakes.”
For some progressives, the solution is for the Democratic Congress to add four seats to “rebalance” the court and fill it with liberal judges in retaliation for Republican tactics. But that effort isn’t moving quickly in Congress: The Judiciary Act has only three sponsors in the Senate and 51 backers in the House. Republicans like McConnell have seized on it as a political bludgeon to use against Democrats, some of whom oppose the bill and fear it will lead to further escalation.
Senator Dick Durbin, D-Illinois, chair of the Judiciary Committee, said the days of Ginsburg’s 96-3 confirmation and Conservative Judge Antonin Scalia’s 98-0 confirmation are long gone.
“It was just a different day,” he said. “The court has become such a political case.”
John Brough, a former senator from Louisiana, said the judicial battlefield reflects rising partisan polarization in Congress, which has also led to the extinction of conservative Democrats like him. He mourned the days of presidential respect for judges.
“The line between Republicans and senators was not a wall,” he said. “It was just a corridor.”
[ad_2]
