D.C. was nominated by President Joe Biden in the past few days. In the days since President Joe Biden nominated D.C. Circuit Judge Ketanji brown Jackson to the Supreme Court’s Supreme Court, there has been a surprisingly quiet Republican response. Most discussion surrounding the nominee has lacked partisan rancor and not a single Senate Republican has yet pledged to oppose Jackson’s confirmation.
The restrained tone is likely due in part to the fact that Jackson won’t swing the ideological makeup of the court; she’s expected to fill Justice Stephen Breyer’s role in the liberal minority. And it may also be due to the fact that Democratic control of the Senate means there’s little Republicans can do to block Jackson’s confirmation.
According to several political strategists as well former and current Congressional aides, national politics also play a role. Republicans who have pinned their hopes on reclaiming the Senate in November’s midterm elections have an interest in keeping the process low profile, in order to avoid alienating swing voters or riling liberals, which could boost Democratic turnout in November. As the March 21 confirmation hearing approaches, strategists warn of other political concerns that could shift the focus. There may be a few prominent Republican members of the Judiciary Committee who are looking to increase their visibility before they run for president. In other words, how heated Jackson’s confirmation process becomes may depend largely on whether Republican Senators are thinking about 2022 or 2024.
“So far, temperatures are lower because this nomination won’t change the balance of the Court, and ultimately there’s nothing Republicans can do to block it,” says a Republican Senate aide, who requested anonymity in order to speak freely. “So the question then becomes, how beneficial is it to overdo it, which varies based on what your objective is: Winning the Senate, or running for President?”
Both sides of the telephonic confirmation hearings for the gynecologist are heard.
J. Miles Coleman, an associate editor of the elections forecaster Sabato’s Crystal Ball at the University of Virginia Center for Politics, says that in recent elections, pitched battles over judicial nominations have become a “two way street,” increasing turnout on both sides of the aisle. For example, when an all-male panel of Senators questioned Anita Hill during Clarence Thomas’ confirmation process in 1991, Democrats were incensed. A record number of Democratic female candidates ran for office the following year.
“If Republicans are too harsh on [Jackson], they risk bumping Democratic turnout in the midterms,” Coleman says.
Republican strategist John Feehery tells TIME that he’s less worried about rallying Democrats as he is about “turning off the swing voters,” who may be alienated by the optics of a panel of white men grilling the first Black woman nominated to the Supreme Court.
Continue reading: Ketanji Brown Jackson’s Path to the Supreme Court Nomination
On the other hand, the Senate Judiciary Committee, which will hold hearings evaluating Jackson’s record and vote on whether to send her confirmation to the Senate floor, includes several young, high profile GOP Senators who are widely expected to be considering a presidential bid: Texas Sen. Ted Cruz, Missouri Sen. Josh Hawley, and Arkansas Sen. Tom Cotton. They believe that a more heated confirmation process is better for media exposure. “The Judiciary Committee has almost been like a magnet for U.S. Senators who want to run for President,” says Coleman.
A case in point is the 2018 confirmation hearing of Justice Brett Kavanaugh. Democratic senators. Senators from the Democratic committee Kamala Harris and Cory Booker questioned the nominee passionately. The nomination was facing serious accusations that he sexually assaulted Christine Blasey Ford while they were high school students. In one notable moment, Booker threatened to defy Senate rules and release confidential documents about Kavanaugh—a move he described as his own “I am Spartacus” moment. All three Senators ran for president the next year.
Sens. Cruz, Hawley, and Cotton could take a similar approach. “I would really expect the Republicans who have presidential ambitions to basically be more vocal in their opposition,” Coleman says.
Republican strategists predict that the opposition will continue to focus on her judiciary record. “They might just question her a bit more dramatically about it,” says a Republican strategist who worked on a number of Supreme Court confirmations. As Feehery put it: They’ll want to appeal to the base, and the base likes red meat.”
Different set of considerations
Analysts warn that the confirmation hearing for 2022 could be more different than it was in previous years. This may make it difficult for the Supreme Court hearings to dominate the news cycle. Kavanugh’s confirmation also threatened to shift the ideological balance of the court. Trump appointed him to the seat once held by Justice Anthony Kennedy.
Jackson’s confirmation, in contrast, is more newsworthy because of the historic nature of her nomination. Republicans Utah Senator Mitt and Missouri Sen. Roy Blunt stated Wednesday to Politico they’d like to vote for Jackson, depending on their knowledge about her judicial philosophy.
So far, the GOP’s arguments against Jackson have largely focused on her judicial philosophy, particularly her multiple rulings against the Trump Administration while a DC District judge. Some Senators, such as Minority Leader Mitch McConnell expressed concerns about progressive advocacy groups’ support for her in their advertisements. McConnell describes them as “dark money” groups that have “spent years attacking the legitimacy and structure of the Court itself” in their calls for changes such as expanding the bench.
Continue reading: What Happens During Ketanji Brown Jackson’s Nomination Process
On Wednesday, conservative Fox News host Tucker Carlson implied on his show that Jackson had not advanced in the legal world solely on her merits, saying that “it might be time for Joe Biden to let us know what Ketanji Brown Jackson’s LSAT score was. Which LSAT scores did she score? … It would seem like Americans in a democracy have a right to know.” The comment was swiftly decried by Jackson’s supporters as racist.
Senate Republicans are careful not to make the same arguments again, and have instead focused on her professional record. “Grassley has warned Republicans to not take the bait,” says former Grassley aide Garrett Ventry, who adds that the Senator directed committee members to keep the process narrowly focused on Jackson’s judicial record, ”rather than getting into the gutter like Senate Democrats have in previous confirmation hearings.”
Grassley stated directly to Judge Jackson that he would keep the process professional, collegial and confidential in a meeting on Wednesday. A source close to the meeting told TIME.
Ventry claims that Grassley warned fellow Republicans not to oppose Jackson’s nominations before they even started. Senate Democrats looked “unreasonable” when they almost instantaneously opposed Trump nominees, Ventry says.
Grassley “saw what happened with the Kavanaugh hearings,” says Mike Davis, who served as chief nominations counsel when Grassley chaired the Judiciary Committee during the Trump Administration. Democrats lost four incumbent Senate seats, Davis says, during a year that was expected to be a “blue wave.” This election cycle, forecasters predict a “red wave” of the GOP taking both the House and the Senate.