In the spring of 2016, Barack Obama nominated federal appeals court Judge Merrick Garland to fill the seat that opened up on the Supreme Court with the death of Justice Antonin Scalia. Senate Majority Leader Mitch McConnell, under the pretext of adhering to a rule about not seating a nominee in the final year of a presidential term, determined that there would be no hearings, no courtesy meetings, and no vote for Garland. He was blanked completely, and Scalia’s seat was eventually filled by a Trump nominee, Neil Gorsuch. One of the lessons derived from that episode was that presidents who are Democrats will not be allowed to fill Supreme Court vacancies under a Republican-controlled Senate (a promise McConnell reiterated about a potential Joe Biden nominee after the midterm elections).
There is also a subtler lesson: Democratic nominees aren’t even worth taking seriously. Ignoring them and their individual lives altogether becomes a strategy that serves to undermine their seriousness and credibility.
That appears to be the GOP plan with respect to President Joe Biden’s nominee for the Supreme Court, Ketanji Brown Jackson. She’s eminently qualified, she comes with a mile-long judicial and professional record that appears to include almost nothing to attack. Polling shows that voters, particularly Black and women voters, are energized and inspired by her nomination. They’d like to hear more. But now that the GOP senses that going after Jackson with a full-throttle assault will backfire in the 2022 midterms with voters who may perceive it as racist and sexist, the party has decided to pretend she is just a judge-shaped nullity.
While it’s true that Fox News host Tucker Carlson welcomed Jackson’s nomination with his trademark blend of racism and meanness—demanding to see her LSAT scores as proof that she really belonged at Harvard—he generally seems to be among the outliers. Politico reported this week that in the absence of a coordinated or coherent attack strategy, some Republican senators plan to just spend the hearing whining about how Democrats treated Brett Kavanaugh. Having concluded that they can’t tank the nomination, but they also can’t lose their six-vote supermajority, distraction is the better part of valor.
So McConnell, who concedes that there is “no question” Jackson is qualified, plans to attack her for the groups that support her nomination, under the theory that if some of them favor court expansion, she must favor court expansion as well. “Curiously, the same radicals who want to turn Democrats into the party of court packing also badly wanted Judge Jackson for this vacancy,” McConnell warned on March 3. In McConnell’s world, if any Democrat supports a nominee, he votes no. That Jackson has remarkable bipartisan support, in his mind, can’t be allowed to matter because her “team” can’t be allowed to win.
Interestingly, Republicans fought harder and dirtier against Jackson before she was even named. Long before Biden settled on her as his pick, Republicans were hissing and spitting about how unqualified any Black woman nominee would be. Mississippi Sen. Roger Wicker announced that whoever she was, Biden’s pick would be the “beneficiary” of affirmative action. Sen. Ted Cruz slammed Biden’s pledge to pick a Black woman as “an insult to Black women.” Amid insulting debates about the as-yet-unnamed nominee as an unqualified “lesser black woman,” the GOP was delighted to go hard on the attack. But as soon as there was a name, a face, a family, and an extensive record, most of the critics chickened out and the rest started chasing squirrels.
In lieu of taking Jackson’s sterling record seriously, opponents have opted for deflection. They don’t like court expansion. They don’t like the Sentencing Commission. They don’t like lawyers who defended detainees at Guantanamo Bay. But these aren’t actually complaints about Jackson or her qualifications. They’re rehashed boilerplate complaints about all Democrats.
Should we be happy that the same white men who were happy to attack the very idea of a theoretical Black woman nominee got quiet in the face of an actual one? Neither the party nor the public (nor the court’s legitimacy, for that matter) benefits from ugly name-calling and abuse. But refusing to engage at all with the living, breathing Jackson is its own form of insult—the same insult directed in 2016 at then-Judge Garland. Because of the shadowboxing over imaginary objections to court expansion or advocacy groups, Americans are denied an opportunity to find out anything meaningful or salient about this historic pick—to hear her life story or to think about what she brings to the court. Sure, if the alternative is racism and sexism, I will take erasing the nominee altogether. But isn’t erasing the nominee altogether ultimately just a different form of racism and sexism?
This negation is a loss in several ways. Polls show that most Americans approve of the Jackson nomination, but don’t know much about her, in part because her name was announced at the start of a Russian invasion of Ukraine. Yet instead of talking about her, in the days before her hearings begin, Republicans are talking about Guantanamo Bay and dark-money interest groups.
Imagine the public discussion we could and should be having about the elevation of the first Black woman to the highest court in the land. Imagine the conversation we could all now be having about a hardworking mother of two daughters who has managed to balance high-flying legal jobs and family. Imagine the conversation we might be having about a Democratic nominee who has been public about the role of her faith, who has an extensive background in criminal rights, who has a fully realized and articulated theory of judging that transcends claims about “originalism” and “living constitutionalism”—ideas that were already cheap cartoons 20 years ago, and are now nothing more than meaningless senatorial emoji.
It’s a shame, because we surely talked about motherhood when Amy Coney Barrett was the nominee, as well as faith. Republicans talked and talked—as professor Melissa Murray notes—marveling for days about all the complexities of Barrett’s feminist story, and yet they want to be silent about Jackson’s. As Barrett’s questions in a recent abortion case, about the breezy choice to leave an unwanted baby at a fire station, inform the court’s current discussion of reproductive freedom, imagine what it would mean to have another mother’s experience in the national discussion of pregnancy and autonomy.
If Republicans would allow themselves to take part in a full and three-dimensional look at Jackson, they might also be able to concede that she fills important gaps on the current court: the first public defender, only the second trial court judge*, a product of public education. To speak frankly about ways in which she adds complexity to the court would not only make the court more visible to an America that believes it to be out of touch; it would be a valuable concession that the court isn’t perfect in every way, and that diversity helps to mitigate that. But Republicans would rather tag Jackson as being a rabid advocate of court expansion (she’s not) than talk frankly about the ways her presence legitimizes the court.
There is so much Americans might learn next week, in this charged American moment around race, justice, policing, education, affirmative action, and family, from Jackson’s own story. But Senate Republicans appear to be happy to go forth with a stony policy of “don’t ask, don’t tell,” as if this pathbreaking individual is just a nameless, faceless placeholder in a process in which their only goal is to not look racist and sexist.
Jackson’s road to the Supreme Court is a journey most young American women would be hungry to learn about. Her education and professional life can serve as road maps for an entire generation of young lawyers. Her navigation of an America that is flawed but striving for equality is the quintessential constitutional story. Supreme Court justices become icons in no small part because of the particulars of their biographies and choices. So unimpeachable has Jackson’s own journey been that less than a year ago she picked off the votes of three Republican senators, who confirmed her to the U.S. Court of Appeals for the District of Columbia Circuit.
McConnell is prepared to call her amply qualified, yet he is content to deny her the opportunity to prove her qualifications to the world. How unutterably sad—the choice to keep an extraordinary, historic nomination from playing out in an extraordinary, historic fashion. McConnell, Lindsey Graham, and Josh Hawley believe they are doing themselves and even the nominee a favor by choosing her erasure over scorched earth. But as a consequence we will all, yet again, fail to hear a story about what is truly best about the courts and America.