WASHINGTON — Republicans know they’re not likely to keep Judge Ketanji Brown Jackson off the Supreme Court — but that won’t stop 2024 presidential hopefuls who sit on the Senate’s judiciary panel from trying to create ad-worthy moments for themselves this week at her confirmation hearing.
Some of the most probable presidential or vice presidential candidates in the next election sit on the committee, and Jackson’s hearing will give them ample opportunity to raise their political profiles.
“I can’t imagine they wouldn’t always take that occasion,” said Sen. Mitt Romney, who represents Utah and was the 2012 GOP nominee for president.
The hearing will be something of an audition for Republicans on the Senate Judiciary Committee who hope to lead the GOP or grab the attention of former President Donald Trump. Trump is toying with a comeback bid for the White House, and the de facto leader of the Republican Party indicated last week that he would not ask former Vice President Mike Pence to be his running mate, if he wins the GOP nomination again.
Sens. Ted Cruz of Texas, Tom Cotton of Arkansas, Josh Hawley of Missouri and Marsha Blackburn of Tennessee are among the Republicans who could run in 2024 and sit on the panel that is responsible for assessing Jackson’s suitability to serve on the Supreme Court.
All four voted against Jackson last year when President Joe Biden nominated her to serve on the U.S. Court of Appeals for the District of Columbia Circuit, and they are not expected to join Democrats and moderate Republican senators who could back her when she comes up for a vote again in the Senate.
“For some of the folks around here, it’s all politics all the time, and if their moment in the spotlight is purchased at the expense of a Supreme Court nominee, I think that may just be fine with them,” Massachusetts Sen. Elizabeth Warren, a 2020 Democratic presidential candidate, said.
Every senator on the 22-member committee will have 50 minutes across two days this week to question Jackson on any topic, and Republicans have previewed plans to scrutinize her record on issues that could animate the electorate.
Kellyanne Conway, a GOP pollster and strategist who was counselor to Trump for most of his presidential term, said in an email that Republican senators “should focus on their job here and now, and look closely at the Supreme Court nominee, not at their own presidential aspirations.”
“Yet of course they know that in a crowded Republican field IF President Trump does not run, made-for-TV moments like this provide opportunities for distinction,” Conway said.
Conway, who helped prepare Trump’s three appointees to the Supreme Court for their Senate hearings, said that as long as senators “are probing, and curious, and smart, and strategic with the questions and not just rude to their guest,” then the public may see them as a “fighting for the truth, fighting for conservative principles, fighting to make sure the Supreme Court has constitutionalists on it.”
Senators to watch
Jackson’s hearing offers Republicans on the committee who are considering higher office a ready-made forum in which they can showcase their legal backgrounds.
Cruz graduated from Harvard Law School, like Jackson, and clerked on the Supreme Court for Chief Justice William Rehnquist. Cotton also earned his law degree from Harvard and clerked for the 5th Circuit of the U.S. Court of Appeals. Hawley is a Yale Law graduate and clerked for Supreme Court Chief Justice John Roberts. Hawley also served as Missouri attorney general.
Blackburn drew praise from conservatives last fall for her pointed questioning of the Joint Chiefs of Staff chairman, Gen. Mark Milley, during a Senate Armed Services Committee hearing on the U.S. military withdrawal from Afghanistan.
Republicans are expected to spend their allocated time questioning Jackson about her position on abortion, a Democratic push to put more justices on the bench, her representation in private practice and as a public defender of Guantanamo Bay detainees, and her views on sex crimes.
Hawley told reporters at the Capitol that he plans to ask Jackson why she consistently handed down sentences as a judge that were below the guidelines for sex offenders and advocated for lesser penalties for individuals accused of possessing child pornography.
“Every parent in America cares about child porn offenders. I do. I’ve got three kids,” Hawley said. “So I think everybody watching these hearings is going to want to hear this question answered.”
White House press secretary Jen Psaki called Hawley’s allegations “faulty accusations” at a briefing last week. She said the senator took Jackson’s comments about child pornography out of context and noted that the bipartisan U.S. Sentencing Commission that Jackson served on unanimously recommended lowering the mandatory minimum for certain types of sex offenses.
Cotton declined to comment on the proceedings. Hawley laughed off suggestions that he could use the hearing to draw attention to himself.
“I’m just going to do my job on the committee,” he said.
Cruz, the runner-up for the Republican nomination in 2016, replied: “I’m not surprised to hear people making attacks. This is the U.S. Senate.”
Blackburn would not talk about Jackson at the Capitol, but an aide to the Tennessee senator — who is the only Republican woman on the Judiciary Committee — told reporters that she has concerns about Jackson’s sentencing record. The aide said during a call previewing Blackburn’s approach that the senator wants a thorough and fair vetting process that allows her to determine whether Jackson will adhere to the text of the Constitution.
Senators are also expected to ask Jackson about racial preferences in college admissions, with the Supreme Court set to hear cases on affirmative action that challenge practices at Harvard and the University of North Carolina.
They are likely to press her on her role on the Board of Overseers at Harvard and whether she will recuse herself from the case, if she is confirmed to the court, said John Malcolm, senior legal fellow at the conservative Heritage Foundation.
“It’s not just an opportunity for the people who are potentially vying for the Republican nomination to shine and burnish their own credentials, it’s also an opportunity for Republicans to contrast the kind of judges and justices you get with a Republican president and a Republican-controlled Senate with the kind of justice you get with a Democrat in the White House in a Democratic-controlled Senate,” Malcolm said.
Trump appointed three Supreme Court justices — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — in his four years as president. All three were confirmed. Former President Barack Obama also made three nominations, although just two made it onto the court. Justices Sonia Sotomayor and Elena Kagan were Obama appointees. His third Supreme Court pick, Merrick Garland, is now U.S. attorney general.
Mercedes Schlapp, a senior fellow at the American Conservative Union who was director of strategic communications at the White House when Trump nominated Kavanaugh, said she sees the possibility for standout moments in Jackson’s hearings. But based on her conversations with senators, she does not anticipate “the nastiness” that is associated with Kavanaugh’s confirmation battle.
Plus with Russia’s invasion of Ukraine, inflation and high gas prices dominating the news, Schlapp said, Jackson’s confirmation fight “might not get all the publicity that a Brett Kavanaugh hearing did get.”
Although they are planning to confront Jackson on her record, Republicans are broadly pledging not to engage in the type of personal attacks they say Democrats launched against Kavanaugh during his 2018 confirmation hearings.
Kavanaugh testified before senators on the panel at two separate points before they took a vote on his nomination after an allegation that he sexually assaulted a woman when they were in high school became public.
Vice President Kamala Harris’ tactical questioning of Kavanaugh helped turn the then-California senator into a household name. She tripped him up with questions on abortion during his first appearance and told Kavanaugh accuser Christine Blasey Ford at the secondary hearing, “You are not on trial.”
Sen. Richard Blumenthal, a Connecticut Democrat on the Judiciary Committee, said Jackson’s past experience testifying before the Senate will help her respond to attacks coming from some of the panel’s Republicans.
“They will try to create a moment for themselves with their right-wing base, but the country as a whole will see through it, and I think that she will be very prepared for whatever comes her way from Republicans,” he said. “They’ve telegraphed a lot of their punches here.”
Biden aides have been holding mock hearings with Jackson. A person familiar with the process said that Jackson has been rotating between visits to Capitol Hill and prep sessions for the hearings that have included dry runs of what a confrontation might be like in the room and the types of questions she might get from senators on the panel.
The White House is preparing the judge for questions based on the topics that came up in Jackson’s meetings with Judiciary Committee members on both sides of the aisle and in senators’ public statements.
“As soon as she was nominated, she started practicing and studying and preparing, which I don’t think surprises anyone who’s looked at her impeccable credentials and record to date,” Psaki said.
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