Ketanji Brown Jackson Confirmation Hearings

I was going to originally put this within a discussion of the Supreme Court, but there is so much going on there, it deserves a separate entry. And, given my interests, probably I can write a lot about them. I already wrote one.

For instance, I think the Republicans (at certain times) touched upon things worthy of comment. They just did it in such a back-assward, biased way that it is hard to take seriously. Still, they are serious issues, and as Amy Howe notes in one of the summary podcasts at SCOTUSBlog as a general statement, it's useful they are brought up. 

These sorts of things are theater with some kabuki. My basic sentiment there in part is "yeah, so what?"  Hearings basically became well used in the age of television.  We had some famous hearings (think Joe McCarthy or against comic books and organized crime) in the 1950s. Confirmation hearings of justices became big things in the 1980s though were present in various ways with some flash (think Fortas) before then.  

These things are not intended to be neutral fact-finding enterprises. A lot of that sort of thing happens behind the scenes. The nominees submit in depth questionnaires and documentation. Senators (this too is fairly recent) meet them in their offices.  The public hearings are often used for talking points and to engage with nominees about the senators' hobbyhorses. And, yes, there is some grandstanding and bullshit.  That too is part of the deal. 

The Republicans were, in various degrees, assholes.  Hawley both rounds basically was quite sure she was soft on child porn since allegedly, among her many cases, she had soft sentencing rules in a few situations.  Other Republicans covered this but not as dog with a bone.  And, various people, including conservative ones, refuted it as unfair and bullshit. 

Cruz was his usual troll self and Tom "the Narc" Cotton wasn't much better, but did so with a bit less sleaze.  The others were varying degree asshole, including Graham, who in his second round really went off about how unfair Democrats were unfair to Kavanaugh.  John Kennedy did his Mr. Haney (Green Acres) routine on unenumerated rights, which clearly was code for certain types of liberal privacy rights.   

These issues should be debated.  Even the question about where "life begins," which many saw as asinine. But, legally, that will be an issue in various instances.  How it was done left a lot to be desired.  Sen. Blackburn cited in passing some comment Jackson made about people having biases as if it was some horrible claim when it is totally honest. 

The Democrats were varying degree useful though Ossoff was curiously limited in his questioning and Booker spent much of his time like a happy puppy about how exciting it was for her to get to SCOTUS.  America is great!!!!!   Whitehouse basically focused on his dark money jeremiad.  Some argued Dems just left her swing in the wind and thought that wrong. The "Dems are just losers" line is tired and helps the other side.

Her criminal justice work was praised a lot.  We didn't get too much really about her overall approach (seems more pragmatic, case specific) and views on various things (like Ossoff had a brief free exercise question) we will basically see first when she is a justice.  She had a lot of boilerplate about staying in lane, limiting the reach of international law (as a case was being heard at that time by SCOTUS), and saying she won't make policy.

I do wish the Democrats covered somewhat more ground on certain issues, these hearings providing a chance to set forth a general view of the law. So, when Republicans broad up trans issues and latched on her inability to cleanly define "woman," Democrats could respond to some degree.  Kennedy made trans issues into some substantive due process issue.  It really is an equal protection issue.  

All the same, like during the Bork/Kennedy hearings, including as cited by then Sen. Biden, SDP and 9A issues do matter. It is not really "non-textual" and either way, people (including "parental rights!" conservatives) accept they exist.  While some people was paying attention, it might have helped to have one or two senators spend more time on that. 

====

I appreciate those who do not like this sort of thing.  It could be done better.  I think the questioning should be split between senators (it is a political/partisan ceremony) and an assigned interrogator.  There is some grandstanding.  But, that gives us a sense of who these people are.  And, we do get some sense of the nominee.  The public does.  That is important. 

One law professor wanted to hear about her judicial philosophy.  His summary left a bit to be desired, noting Roberts relies on doctrine.  Without more that is laughable.  It only reaffirms the argument of people like Sen. Coons that labels can mislead.  

I think the question is at least somewhat fair though probably as a district court judge she did not really develop as much of an in depth theory as a long term appellate judge might have.  The chart put out there about all of her "boxes" (public school, district/appellate judge, sentencing commission and so on) aside, she has barely been an appellate judge.  She wrote her first opinion there not that long ago.  She did note:

"I will say that I come to this position, to this moment as a judge who comes from practice -- that I was a trial judge and my methodology has developed in this context. I don't know how many other justices other than Justice Sotomayor have that same background."

This suggests to me a type of pragmatic vision based on the facts.  Other than that, she dealt with the usual platitudes about being neutral to parties though seems to have in whatever way determined some originalist sounding talk would sell well.  

Since Republicans didn't latch on to it, I guess her opinions really do not show much of a special interpretation philosophy.  This was sorta used by Republicans against her, including in testimony from a former Kavanaugh clerk.  I question, however, really how much it matters.  Still, I think -- like Sotomayor's stronger than some probably expected voice on SCOTUS from the left -- we will have to wait some to get a full sense of her style. 

Along with her limiting the reach of international law (and the to me wrong comment that she couldn't think of a constitutional provision where it factors in -- the Supreme Court clearly says it does in the 8th Amendment context surely)  and other white lies, I don't find that appealing.  But, I know the confirmation dance.  

Thursday was witnesses, including a first step to show she is mainstream in her decision-making. Republicans had a bunch from central casting. An old lady against abortion.  A black woman for conservative religious liberty and against critical race theory ("Kant is anti-enlightenment").  A Southern Attorney General who (asked at least three times) wouldn't say Biden was "duly elected."  A Kavanaugh clerk to vaguely say her legal views are iffy. And, an anti-child porn activist to continue that smear.

Now, there is a break, and the Judiciary Committee will come back at the end of the month.  Votes will take place in April it seems.  We will see, as we handle other things, if anything else comes up of note here.