Previewing Judge Ketanji Brown Jackson's SCOTUS Confirmation Hearings
What are the chances that Judge Jackson's nomination will be defeated?
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We will soon have something to focus on besides the war in Ukraine. On Monday, March 21, the Senate Judiciary Committee will begin the Supreme Court confirmation hearings for Judge Ketanji Brown Jackson (D.C. Cir.). I have previously predicted that she will be confirmed, and nothing I’ve heard in the news lately gives me reason to reconsider.1
Judge Jackson’s courtesy calls with senators are going well. Tucker Carlson’s demand to learn her LSAT score is asinine at best, racist at worst.2 Conservatives don’t have much appetite for a scorched-earth battle over her confirmation, especially since her replacing her former boss, Justice Stephen Breyer, won’t change the ideological balance of the Court.
Rather than being attacked by the right, Judge Jackson has received several endorsements from conservative legal luminaries. Her supporters include two prominent former judges appointed by Republican presidents, Thomas Griffith (D.C. Cir.) and J. Michael Luttig (4th Cir.), as well as Quinn Emanuel partner Bill Burck, who served in the White House Counsel’s Office under President George W. Bush and is a go-to lawyer for conservatives in legal hot water. Burck, who clerked for Justice Anthony M. Kennedy when Jackson clerked for Justice Breyer, was also one of two dozen law clerks from October Term 1999 who signed a letter supporting Judge Jackson’s SCOTUS nomination (although whoever was in charge of gathering signatures misspelled Burck’s name).
A reader asked me this: is it theoretically possible that Judge Jackson could slip up at her confirmation hearings in a way that might jeopardize her nomination? I suppose so, just as it’s theoretically possible that I might travel to the moon.
But the chances of Judge Jackson stumbling at her hearings and losing the nomination are very low (even lower than the chances that I might go to the moon, since commercial space travel might become a reality for normal people before I die). She’s exceedingly smart, experienced, and likable, and this ain’t her first time at the rodeo. She has been confirmed by the Senate three times already—to serve on the U.S. Sentencing Commission, the U.S. District Court for the District of Columbia, and the D.C. Circuit—and she knows how the game is played.
First, Judge Jackson will not have a “Bork problem.” Judge Robert Bork, whose 1987 nomination to the Supreme Court went down by a vote of 58-42, was the subject of harsh attacks that turned his last name into a verb. Had he turned in a masterful performance at his confirmation hearings, maybe he could have turned things around. But his testimony only made things worse, as recounted by Nina Totenberg of NPR:
Known as a charming and witty man in private, Bork was dour and humorless in public, and his answers seemed to play into the stereotype liberals were painting of a man who cared little for the public. When Republican Sen. Alan Simpson of Wyoming pitched a softball to Bork, asking him why he wanted to serve on the Supreme Court, the nominee replied that "it would be an intellectual feast."
TV critic Tom Shales of The Washington Post would write of the testimony: "He looked and talked like a man who would throw the book at you—and maybe the whole country."
Judge Jackson will not have that problem. Even people who disagree strongly with her jurisprudence tell me that she’s one of the most likable people you’ll ever meet. If confirmed, she’ll give Justice Clarence Thomas a run for his money as Mayor of One First Street, i.e., the most popular justice in the building.3
Unlike Judge Bork, Judge Jackson will come across superbly on television. She has been a public speaker ever since high school, when she was a national champion in speech and debate, and it shows.
Just listen to her White House acceptance speech: poised and polished, confident yet humble. She’ll also be hard to demonize as a “crazy, radical, America-hating liberal.” Note how she opens her remarks: after thanking President Joe Biden and Vice President Kamala Harris, she thanks God, noting that “one can only come this far by faith”; praises the United States, “the greatest beacon of hope and democracy the world has ever known”; and highlights the many members of her family who have served in the military or law enforcement, including her brother and two uncles, one of whom became the police chief of Miami.
Or listen to her delivering the 35th annual Edith House Lecture at the University of Georgia School of Law, another top hit if you Google “ketanji brown jackson youtube.” If you watch even just the first two minutes of the video, you’ll get a sense of her warmth, charm, and self-deprecating sense of humor.
Second, don’t expect Judge Jackson to get tripped up by a substantive question she doesn’t know the answer to—not only because she’s super-smart and experienced, but because embarrassing a nominee with a substantive question is actually much harder than it looks.
Your question needs to land in the sweet spot of “hard enough that they don’t know the answer, easy enough that it’s not viewed as obscure, and important enough that it raises questions about the nominee’s ability to do the job.” So you can’t, for example, ask the nominee to recite the U.S. Reports citations for random cases; nobody would be expected to know such trivia, and it’s irrelevant to the job. You can ask the nominee whether she knows what a motion in limine is—but Judge Jackson, a trial judge for almost a decade, won’t be stumped by questions like that.
And nominees do get some leeway even if they flub the answers to substantive questions. For example, Judge Eunice Lee (2d Cir.) stumbled a bit at her own hearings when Senator Tom Cotton (R-Ark.) asked her about the Seventh Amendment and the right to a jury trial in civil cases. But she still got confirmed in the end, presumably because this questioning was viewed as too obscure, not important enough (at least for an appellate judge), or some combination of the two.
Judge Lee’s confirmation underscores what I’d describe as the importance or “materiality” requirement for flubs. Not knowing the ins and outs of the Seventh Amendment as an appellate judge doesn’t raise questions about the nominee’s fundamental ability to do the job; should this issue come up in an appeal, the nominee (or her clerks) will have ample time to pore over the finer points of Granfinanciera, S.A. v. Nordberg. In contrast, a district-court nominee who doesn’t even know what a motion in limine is raises the possibility that the judge won’t know enough about the rules of evidence to preside over trials, a core part of the job of a trial judge. So any stumbling by Judge Jackson would have to be so problematic that it would raise real doubts about her ability to serve as a Supreme Court justice.
Yes, the scrutiny and stakes are higher for SCOTUS nominations compared to lower-court nominations, but that cuts in both directions. Any misstep by Jackson will get more attention, but at the same time, she’ll get much more support from her defenders if she does make a mistake. It’s not a big deal for a presidential administration to abandon lower-court nominees who do poorly at their hearings. Here, in contrast, the Biden Administration and Senate Democrats are deeply invested in the success of Judge Jackson’s nomination. If she makes an embarrassing but defensible error in her testimony, she’ll be defended to the hilt—not just by the White House and Senate Democrats, but also by many in the mainstream media.
Also, note that several of the most conservative members of the Senate Judiciary Committee, including Senators Ted Cruz (R-Tex.), Josh Hawley (R-Mo.), and Tom Cotton (R-Ark.), are widely viewed as having presidential ambitions. They’ll probably be more focused on using their airtime to speechify about the proper role of a judge in a democracy, instead of interrogating Judge Jackson and trying to trip her up. I expect that she’ll get many questions that are nothing more than vehicles for a senator to showcase his judicial conservatism, and few questions that will actually pose any real risk to her nomination.
One final point: what would conservatives gain from defeating the nomination of Judge Jackson? As noted above, her replacing Justice Breyer won’t change the fundamental ideological balance of SCOTUS. Sure, she’s probably to the left of her former boss, but on a Court where conservatives have a 6-3 advantage, that doesn’t matter much.
There’s also more than enough time between now and the midterms for the Biden Administration to nominate and confirm a new nominee in the (extremely unlikely) event that Judge Jackson isn’t confirmed. So even if Republicans fight the Jackson nomination tooth and nail and successfully derail it, their reward is… Justice Leondra Kruger?4 And while it’s theoretically possible that the Senate could change hands before the midterms, allowing Senator Mitch McConnell (R-Ky.) and his fellow Republicans to either vote down the nominee or give the nominee the Merrick Garland treatment, it’s very unlikely.
So in the end, I stand by my prediction that Judge Ketanji Brown Jackson will become the third Justice Jackson in the history of the Supreme Court. Good luck to her in the confirmation process, and good luck to the members of the U.S. Senate as they perform their advice-and-consent function under the Constitution.
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Some news developments since the announcement of Judge Jackson’s nomination have actually increased the odds of her confirmation. For example, Senator Ben Ray Luján (D-N.M.) is back to work after his stroke, which means that the Democrats have all 50 votes they need to confirm Judge Jackson without any Republican support.
Setting aside the racism, Carlson’s LSAT argument fails on its own terms. Here’s the gist of it: “Ketanji Brown Jackson isn’t that smart, and she got into Harvard Law School only because of affirmative action.” But remember that the whole point of the LSAT is to predict how well a candidate will do in law school. And we know how well Jackson did in law school: extremely well, with a record strong enough to snag three coveted clerkships, including a Supreme Court clerkship.
Jackson graduated cum laude from HLS in 1996, back when it still had a traditional system of letter grades. Law school grading is fairly “objective,” to the extent that any system of academic grading is “objective,” and it’s generally blind, i.e., it does not take race into account. She also graduated magna cum laude from Harvard College before entering HLS.
So even if you assume for the sake of argument that Jackson benefited from affirmative action in college or law school admissions—an assumption for which there’s absolutely no evidence—she kicked butt at two of America’s most elite institutions, leaving most of her classmates (of all races) in the dust. There is simply no basis for questioning her academic and professional qualifications. [UPDATE (3:52 p.m.): Today graduating cum laude from HLS puts you in the top 40 percent of the class. But as one HLS alum pointed out to me just now, this has not always been the case. For example, according to this 1999 article in the Chicago Tribune, “76 percent of Harvard Law grads earned honors, 16 percent of them magna cum laude and 60 percent cum laude.” But graduating cum laude from HLS is still an impressive accomplishment, putting Judge Jackson in the company of Justice Neil M. Gorsuch—and nobody asked to see then-Judge Gorsuch’s LSAT when he was nominated to SCOTUS.]
As Michael O’Donnell wrote in The Atlantic, “The first thing to know about Clarence Thomas is that everybody at the Supreme Court loves him…. Thomas cultivates a jovial presence in the building’s austere marble hallways. Unlike most of his colleagues, he learns everyone’s name, from the janitors to each justice’s law clerks. He makes fast friends at work, at ball games, and at car races, and invites people to his chambers, where the conversations last for hours. Thomas’s booming laugh fills the corridors. He passes silly notes on the bench. As the legal analyst Jeffrey Toobin wrote in 2007, with his ‘effusive good nature,’ Thomas is “universally adored.”
Yes, I suppose that conservatives might prefer Justice Leondra Kruger (Cal.) or Judge J. Michelle Childs (D.S.C.) as the nominee, since either is likely more conservative than Judge Jackson. But I don’t see any ideological difference Judge Jackson and the two runners-up as significant; it wouldn’t be as consequential or as advantageous to the left as, say, defeating Judge Bork and getting Justice Kennedy instead.