SCOTUS confirmation

Supreme Court nominee Judge Ketanji Brown Jackson answers questions during her Senate Judiciary Committee confirmation hearing on Capitol Hill on March 22, 2022, in Washington, D.C.

MURRAY – Although Judge Ketanji Brown Jackson appears all but sure to be confirmed as the next justice on the U.S. Supreme Court, it will be because Democrats hold the narrowest of margins in the Senate. Dr. Paul Foote, associate professor of political science at Murray State University, said that despite very tough questioning from Republicans on the Senate Judiciary Committee, Brown managed to avoid responding emotionally or saying anything that could derail her confirmation.

President Joe Biden nominated Brown, who currently sits on Washington D.C.’s federal appellate court, on Feb. 25 to replace retiring Justice Stephen Breyer. According to CNN, Majority Leader Chuck Schumer made a formal move on the Senate floor Monday to discharge the nomination from the Senate Judiciary Committee after a deadlocked 11-11 vote along party lines earlier in the day. A procedural vote was expected later Monday night that would clear the way for a full Senate vote, which Schumer promised would happen before the end of the week.

Although Foote said he didn’t watch all 22 hours of Brown’s confirmation hearings before the Senate Judiciary Committee, he watched quite a bit of them and found them quite interesting. While Foote said the Supreme Court is not his primary focus of research, he has written or co-written and published several articles related to the Supreme Court, including the subjects of the legacy of Brown v. Board of Education; Chief Justice John Roberts; the role of “so-called moderate justices” on closely divided cases during the late Chief Justice William Rehnquist’s tenure; and former Justice Anthony Kennedy’s role on the court.

The U.S. Constitution requires that the Senate “advise and consent” on a president’s Supreme Court nominees, but in the last few decades, Foote said the nomination hearings have in large part become a platform for senators – especially those planning to run for president – to appeal to their base. According to TIME magazine, the late Justice Sandra Day O’Connor’s hearings in 1981 were the first to be televised, and Foote said the TV cameras have done a great deal to change the nature of the hearings. He noted that Sen. Ted Cruz (R-Texas) is expected to run for president again as he did in 2016, and Sen. Josh Hawley (R-Missouri) is widely expected to run in 2024 as well, and they asked some of the toughest questions of Brown.

“I think they asked the hardest questions, so I think they’re asking those kind of questions because they’re trying to raise money,” Foote said. “They gain attention from certain constituencies, and I think that’s probably why they gave her a hard time with some of those questions, whereas with the Democrats, it seemed like everything was like a softball throw. (With New Jersey Democratic Sen. Cory Booker), I thought he was going to get up and give her a hug or something. It was very emotional. He was so (full of) joy and it was it was the exact opposite from Cruz or Hawley.”

Foote added, “It seems like the Democrats are definitely not doing ‘advice and consent.’ What they’re doing is almost cheerleading on her side by talking about aspects of her resumé that they think the American people would want to know.”

Foote said Republicans centered a lot of their questioning on her decisions as a defense attorney representing Guantanamo Bay detainees, while Democrats highlighted Brown’s endorsements from law enforcement groups like the International Association of Chiefs of Police and the National Fraternal Order of Police. Republicans also questioned her about handing out less than the maximum recommended sentences for people with child pornography-related convictions, which Brown defended on the basis of considering factors like testimony from probation officers and police.

Foote said he thought it was interesting how the Republicans pressed Brown on her judicial approach. While conservatives typically say they want judges to only consider “original intent” when it comes to constitutional matters, Brown responded that she uses a variety of different methods. 

“She called it a ‘methodological approach,’ and I don’t know, it’s a little bit confusing, but she did it in such a way where it appeared effective to me and maybe people watching on TV, that she does have an approach to deciding cases, but she wasn’t very specific about it,” Foote said.

Republicans also asked Brown her opinion on the idea of “packing the court,” or trying to appoint more than nine justices to give one political side an advantage over the other. Foote said Supreme Court justices don’t have a say on that issue, and Brown also tried to avoid directly answering other political questions regarding transgender athletes in women’s sports and Critical Race Theory. While her body language seemed to reveal her frustration with the nature of the questioning at times, Foote said she managed to stay calm throughout the grueling process.

“Overall, I thought she did quite well and she handled herself well,” Foote said. “With some of those questions, she knows they’re trying to make her look bad, so it gets very frustrating, but she just held her head high and kept her composure. I was impressed by that. When you think about it, you’re going through (22 hours of questioning) so it’s got to be exhausting. I mean, they give you a maybe a bathroom break and a lunch, but they’re going from about 9 in the morning, all the way sometimes to 8 or 9 at night. It’s just a lot to think about, just sitting there listening and have to think of ways to answer so you don’t hurt yourself with your answer. Then she’s got to come back the next morning and do the same thing all over again.” 

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