Lacking any valid reason to reject Supreme Court nominee Ketanji Brown Jackson, some Senate Republicans chose an utterly pointless pretext: her refusal to say whether she supports packing the court with more justices, as some of its critics advocate.
Her answer was the only right one.
“Judges should not be speaking to political issues,” Jackson said, adding that “I am so committed to staying in my lane of the system.”
That is what true conservatives used to like to hear judges say. But few remain in the radicalized Republican caucus.
One of its goals under minority leader Mitch McConnell is to turn the entire judiciary into an instrument of the Republican Party and its policies. If they haven’t succeeded in destroying the constitutional separation of powers, they want their voter base and big contributors to see how hard they’re trying. That’s what the indecent opposition to Jackson was about. It also played well with the racist element.
Should have been unanimous
Jackson endured their mudslinging to be confirmed, 53-47. The three Republicans who supported her — Susan Collins of Maine, Mitt Romney of Utah and Lisa Murkowski of Alaska — expressed concern about how partisan confirmation hearings have become. That trend is unhealthy for the court and for the country. The shame of it is that Jackson deserved a unanimous vote.
To their disgrace and, we trust, the disgust of most Floridians, senators Marco Rubio and Rick Scott chose their party line and the wrong side of history rather than honor a deserving daughter of Florida with the highest rank yet earned by anyone from this state.
Scott’s vote was expected, given his habitual partisanship and his chairmanship of the Republican Senatorial Campaign Committee. Rubio, facing a re-election bid in November, must have exhausted his good instincts the week before, when he belatedly helped break the GOP’s eight-month boycott of Holocaust historian Deborah Lipstadt’s confirmation as President Joe Biden’s special envoy against antisemitism.
Polls show sharply rising public disapproval of the court, so it matters that Jackson is the most popular nominee since Chief Justice John Roberts in 2005. In a Pew Research Center report issued before the hearings, more than twice as many people favored her as were opposed.
The hearings did not damage her. According to a Morning Consult/Politico poll conducted April 1-4, the public favored her 49% to 26% (with the rest undecided), making her more popular than President Donald Trump’s three nominees.
The Republicans harping on the court-packing issue are, of course, up to their nostrils in hypocrisy. They set an example of packing with their nearly year-long refusal to even allow hearings on Merrick Garland’s nomination by President Barack Obama. That kept the late Justice Antonin Scalia’s seat open for a Republican president to fill, preserving the conservative majority on the court.
In contrast, McConnell hastily got Amy Coney Barrett confirmed barely a week before the 2020 election, enlarging the majority and casting Roberts, the occasional moderate, into the unfamiliar role of occasional dissenter.
McConnell and Sen. Lindsey Graham, who might chair the Judiciary Committee in a Republican Senate, left no doubt this week that they would use that power to block any more Biden nominees. That would be court-packing on steroids.
A red herring
The Republican static over Jackson’s demurral on the packing question was a red herring, a distraction. Because it appears impossible to amend the Constitution in today’s political climate, enlarging the court is a nonstarter. It’s also a bad idea, especially for the precedent it would set.
A better idea is the 18-year term limit proposal that Biden’s study commission praised without exactly recommending it. It would reduce the political pressure that comes with each presently lifetime appointment and encourage presidents to appoint older candidates. But it too lacks traction.
It bears remembering that before McConnell’s court-packing, Supreme Court confirmation votes were only infrequently partisan and often unanimous. Among nine from 1975 through Obama’s term, only three were partisan. Of Ronald Reagan’s five nominees, three were confirmed unanimously, including Sandra Day O’Connor, the first woman, and only the outlier Robert Bork was rejected, with six Republicans opposing him.
For most of the nation’s history, confirmations were by voice vote. They were not subject to hearings until President Woodrow Wilson nominated the first Jewish justice, Louis D. Brandeis.
Other than the Republican disrespect for an independent judiciary, the greater present danger to the court is internal. Oklahoma’s legislature is only the latest to effectively ban abortion on the assumption that the conservative justices will erase rather than erode Roe v. Wade. Nearly two-thirds of the American people oppose that, polls show, meaning that such a result would be devastating to public opinion on the court itself and to its legitimacy.
In a democracy, trust is the judiciary’s only armor.
There is also the matter of Justice Clarence Thomas’s wife, Virginia, and her involvement in the events culminating in the Jan. 6, 2021 insurrection.
He is not responsible for her political extremism and conspiracy theories, as revealed in a volley of emails between her and Trump’s chief of staff, Mark Meadows. But he is responsible for insulating himself and the court from any potential conflict of interest related to her.
She was advocating for the vice president and Congress to defy the Constitution and overturn Biden’s election. Justice Thomas has already participated in one relevant case, casting the only dissent to turning over some White House records to the Jan. 6 investigating committee.
What if the court should be closely split on another case?
In the technical sense, Virginia Thomas has no known financial stake in the probe, so neither does her husband. But that is a distinction without a difference. He should recuse.
Jackson already has set the proper example. The most pertinent question asked of her during the Judiciary Committee hearings concerned the pending Supreme Court case over Harvard University’s affirmative action policy. She’s a Harvard alumna and a member of its Board of Overseers. She said she would recuse herself.
Again, it was the right answer — and the right example for sitting justices like Thomas to follow.
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The Sun Sentinel Editorial Board consists of Editorial Page Editor Steve Bousquet, Deputy Editorial Page Editor Dan Sweeney, and Editor-in-Chief Julie Anderson. Editorials are the opinion of the Board and written by one of its members or a designee. To contact us, email at letters@sun-sentinel.com.
