President Joe Biden’s nomination of U.S. Court of Appeals Judge Ketanji Brown Jackson to fill the Supreme Court seat to be vacated by Associate Justice Stephen Breyer at the conclusion of October Term 2021 has predictably begotten misconceived commentary.
For starters, many Democrats insist that the liberal judicial philosophy of Jackson should not factor in the Senate confirmation process. All that should count are her glittering credentials and accomplishments.
But not so fast. Have Democrats, including Biden, forgotten the sordid Democratic tactics to defeat Judge Robert Bork’s nomination for alleged conservative philosophy coupled with vilification featuring claimed support for back-alley abortions and segregation?
Biden can be summoned against himself. In November 1986, then-Sen. Biden related to the Philadelphia Inquirer that if a well-qualified conservative like Bork were nominated for the Supreme Court, “I’d have to vote for him, and if the groups tear me apart, that’s the medicine I’ll have to take.” But on June 28, 1987, Biden, then-chairman of the Senate Judiciary Committee, turned like a human weathervane after Bork’s nomination by President Ronald Reagan.
Biden led the opposition. He mischaracterized his earlier support for Bork as conditioned on his filling a conservative seat, a belated epiphany that conveniently put him in the good graces of his Democratic colleagues and special interest groups. Biden acknowledged that Bork “is a brilliant man.” But the senator decried the prospect of “six or seven or eight, or even nine Borks” on the Court, a throwback to Sen. Roman Hruska’s immortal salute to mediocrity: “(T)here are a lot of mediocre judges and people and lawyers. They are entitled to a little representation … We can’t have all Brandeises and Cardozos and Frankfurters and stuff like that.”
This is not to say that judicial philosophy should predominate the confirmation process of Jackson. Alexander Hamilton explained in Federalist No. 76 that Senate confirmation was to vet nominees for cronyism, competence or corruption.
Moreover, the president represents a national constituency whereas senators are parochial.
Supreme Court justices expound the Constitution and laws for the nation, not for individual states.
Jackson deserves the support of Senate Republicans notwithstanding her liberal politics.
Her credentials are in the same league as Bork’s: Harvard, Harvard Law School, clerk to Justice Breyer, eight years as a U.S. District Court Judge for the District of Columbia and service on the U.S. Court of Appeals since 2021.
In supporting Jackson’s nomination as a District Court Judge, former Republican House Speaker and vice presidential nominee Paul Ryan effused, “Our politics may differ, but my praise for Ketanji’s intellect, for her character, for her integrity, it is unequivocal … She is an amazing person, and I favorably recommend her consideration.”
Biden inexcusably diminished Jackson’s nomination by announcing in advance that he would appoint a Black woman. No other candidates need apply. Thereby hangs a tale of the betrayal of Dr. Martin Luther King Jr.’s hope for a colorblind society that judges by the content of character, not skin color.
King echoed Justice John Marshall Harlan’s stirring dissent in Plessy v. Ferguson (1896): “But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.” Or as the late Justice Antonin Scalia instructed, “In the eyes of government, we are just one race here. It is American.”
In 1964, the Supreme Court invalidated the ballot identification of candidates by race to discourage combustible racial bloc voting. In Anderson v. Martin, the Court explained, “We see no relevance in the State’s pointing up the race of the candidate as bearing upon his qualifications for office.” It is axiomatic, as Chief Justice John Roberts elaborated in 2007, that “the way to stop discrimination based on race is to stop discriminating based on race.”
Fast forward 58 years and race has become the be-all and end-all of liberal politics, confounding King’s message that our deliverance is in colorblindness. Majority-minority electoral districts are drawn on the insulting assumption that all Black people think alike and sport identical political preferences. Race is routinely employed as a readily manipulable “plus” factor in college or university admissions to achieve campus or classroom quotas. The Orwellian view that practicing racism is necessary to extirpate the evil has taken hold.
The Supreme Court’s docket exhibits an openness to reconsidering these racist assumptions. The Senate Judiciary Committee should question Jackson’s commitment to a colorblind Constitution in confirmation hearings, but not how she might vote in any specific case. She should also be asked about stare decisis and justifications for overruling precedents.
But Republican senators should support her confirmation irrespective of her left-leaning judicial philosophy based on her qualifications, simpliciter. The temptation to bork Judge Jackson should be resisted.