Questions of Supreme Court nominee Jackson revealed sad GOP agenda

The question on the docket in the recent hearing on Judge Ketanji Brown Jackson’s nomination to the Supreme Court was the request to provide a definition of a woman. It was not only Senator Blackburn who asked such an absurd question, but Senators Cruz, Hawley, Graham, Cotton, and Graham. Their collective hissy fits had nothing to do with the candidate's judicial rulings, and surely lacked any reference to the 500-plus cases Judge Jackson oversaw, actual matters of law, the basis by which she could have been evaluated. Rather, these political opportunists went straight for the hot button issues that rouse their base. They sought to demonize and dehumanize Judge Jackson. That collective line of questioning reflected more on the questioners than on Ketanji Brown Jackson.

 This was not the uniform Republican tactic. Senators Grassley, Cornyn, Lee, Sasse, and Kennedy at least made the right gestures and (sometimes) engaged in serious discourse with the judge on judicial matters such as her rulings, philosophy, and methodology in settling cases.

One critical issue which emerged was the relationship between judicial philosophy of “originalism” – interpreting the Constitution’s meaning as a living document as opposed to a strictly worded text - and Brown Jackson’s methodology. When pressed by Senator Sasse, Judge Jackson explained that she took the relevant facts into consideration — original text, previous rulings, settled constitutional law – and applied them to the specific case under review and the various contexts in which it is grounded. On this, she placed a great deal of emphasis on text and precedent and gestured toward originalism even as her move in this direction was considerably more muted than other members of the US Supreme Court.

 Her philosophy, in short, is grounded in practice rather than academic theory. On this, she rejects what Daniel Farber and Suzanna Sherry refer to as “grand theory,” in their important study, Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations.  There is much here to consider, more than what can be reviewed here; the point being that these complex matters were discussed in the hearing by both Democratic and a significant number of Republican Senators who thought the discussion a worthy one in querying a potential Supreme Court nominee.

 In terms of the question Blackburn asked and the context of which she asked it, if I were a Ketanji Brown Jackson anger translator, I would have pushed back by asking if there was an actual judicial question related to gender that the senator would like to ask? That's, after all, why I'm here, so why don't you, Senator Blackburn, stop playing political games and ask me a substantive legal question about gender that is not likely to appear in a case before the Supreme Court anytime soon. We are both intelligent people, Senator. I can only assume if you have an honest question relevant to my nomination, we can find a way to address it. Try me and let’s see how it goes.

 In so many words, this was the approach of Grassley et al. and substantive discussions ensued. It was clear, however, that Senators Blackburn, Cruz, Hawley, Cotton, and Graham had another agenda--mugging for the camera to arouse their political base.

 In view of the historical nature of this nominee, one wonders if it is less than a coincidence that all these senators represent states that had slavery in place until 1865; all of them, except Missouri, seceded from the Union by 1861; and all enacted Jim Crow segregation laws into the 1960s. A coincidence? Perhaps. Then again, perhaps not.

 In any event, echoes were evident from before the hearing in the various chidings of Joe Biden for limiting his Supreme Court selection process to a Black female - even though a similar restriction was placed by the Trump administration to limiting candidates for the court to those who first gained the approval of the ultra-conservative Federalist Society.

 The irrelevant, misleading, badgering accusations against Judge Jackson’s assumed embrace of Critical Race Theory, her alleged promotion of transgenderism and so-called softness on crime, reinforced a broad array of right-wing tropes. Those target the legitimacy of African American women unless they are the ‘right kind’ of African American and ‘right kind’ of woman, according to the radical right. The petulance of Graham and the enacted grievance of Cruz personified the outrage witnessed daily on media outlets such as Fox News. What they fear most? A world taken over by the radical ‘other’, who, they claim, might threaten the fabric of the republic.