How Republicans Should Respond to Ketanji Brown Jackson

J oe Biden has made it official: He announced this afternoon that he is nominating Ketanji Brown Jackson, a federal judge and former law clerk to Stephen Breyer, to replace Breyer on the Supreme Court. Replacing a justice with one of his own former clerks is becoming a bit of a pattern, as Brett Kavanaugh was a former clerk for Anthony Kennedy. Jackson has spent a decade as a federal district judge and was confirmed last year to the D.C. Circuit, although she has barely been there long enough to have much of a record as a federal appellate judge. In addition to being the first African-American woman on the Court, she will be the first former federal public defender on the Court.

Aside from Biden’s pledge to appoint a black woman, which took roughly 97 percent of the possible contenders off the board right away just for their race and gender, it seems clear that a few factors helped elevate Jackson over the other two main contenders, Leondra Kruger of the California supreme court and South Carolina federal district judge Michelle Childs:

• One, whether or not Breyer weighed in formally, nominating Jackson is at least a thank you from Biden to her old boss for retiring now.
• Two, progressives lobbied hard for Jackson and were particularly opposed to Childs, largely because Jackson is seen as more sympathetic to criminal defendants and employment-discrimination plaintiffs. It says something that these were their priorities, given that Kruger’s record is, if anything, more ideologically progressive.
• Three, Jackson will vacate a seat on the D.C. Circuit, likely giving Biden another plum appointment to that court before the midterms.
• Four, Jackson has already been confirmed by the Senate three times (as a district and appeals judge and as vice chairman of the U.S. Sentencing Commission). Her confirmation just last year was supported by all 50 Democrats plus three Republicans: Susan Collins, Lisa Murkowski, and Lindsey Graham. The Biden White House obviously believes that this makes her easier to confirm.
• Five, Jackson was put on a lot of liberals’ radar after writing purple-prosed opinions in Trump-related lawsuits during the last presidency, making her something of a Resistance heroine.

Jackson has a few drawbacks, however. She is not a particularly good writer, the bread-and-butter of a Supreme Court justice’s job. She will likely recuse herself from the big Harvard-race discrimination case, which will probably be the most consequential hot-button case on the Court’s docket next term. And she seems more apt to join Sonia Sotomayor in writing florid dissents rather than join Elena Kagan in trying to build bridges of consensus to Chief Justice John Roberts and to conservative justices who may be inclined toward compromises in particular cases. There is little in her record to suggest that she would provide influential intellectual leadership on the Court of the sort that Antonin Scalia, William Brennan, or Clarence Thomas have been known for.

Here are three ways Senate Republicans should approach the nomination.

First, be realistic. Democrats have 50 votes, and they have Kamala Harris to break a tie. That means that Republicans cannot stop Jackson’s confirmation unless they can peel off at least one Democrat who voted to put her on the D.C. Circuit. Even Democratic mavericks such as Joe Manchin and Kyrsten Sinema have been reliable votes for progressive judges.

That doesn’t mean that Jackson is unstoppable. We have seen failed nominations in the past when the president’s party had the votes, most recently Harriet Miers in 2005. But those have typically been personal defeats: The president’s first or second choice was defeated or withdrawn, and the president still got to fill the seat. As I noted when Brett Kavanaugh was nominated in 2018, if you go back to the start of popular elections to the Senate in 1914, every single vacancy in advance of a midterm election has been successfully filled, all but two of them on the first try. The only failed nomination when the president’s party controlled the Senate was in 1930, and even Biden isn’t in as bad shape politically as Herbert Hoover and the Republicans were then; Hoover still got his second choice through.

The record in midterm years was nearly as strong between 1789 and 1910, albeit with a few more vacancies that required multiple tries.

Being realistic means three things. It means that Republicans should aim to use the nomination to impose political costs on Biden and on senators voting for Jackson. It means that Republicans don’t need to try desperate stunts to win. And it means that their audience, if there is a chance of sinking Jackson, is Democratic senators, and their argument in that regard must be specific to Jackson rather than generally about constitutional philosophy. By contrast, the more remote the odds of stopping her, the more Republicans should talk to the voters about that philosophy in order to highlight the stakes in Senate races.

The flip side: Because Jackson is likely to be confirmed (unless something unexpected happens), Republican senators can afford to look to their own personal advantage in how they vote. Republicans who want to look bipartisan or supportive of a historic nomination can vote for Jackson with a clear conscience if the vote is not close; Republicans worried about primary challenges or with national ambitions can put their opposition to her on the record without fearing a charge of trying to deny Biden any nominee. But it will be prudent for any Republican senator who is tempted to vote yes — or feels pressure to do so — to maintain a public posture of being undecided until the hearings, in the event that something comes out that makes defeating Jackson possible.

Second, don’t play for revenge. It may feel good, emotionally, to play the “you made these rules” game and try for scorched-earth personal destruction of the type deployed against Kavanaugh. But that backfired on Democrats. In a Democratic wave year, multiple Senate races swung toward Republicans down the stretch. A lot of people were horrified by the Democrats’ antics. It is highly likely that some far-right figure will try to gin up a fake sexual-misconduct charge against Jackson, just for the revenge factor. For reasons of both politics and principle, we should urge the Senate to evaluate any personal charges of scandal of any kind against Jackson by the same standards of fairness and rigor we urged for Kavanaugh and for Joe Biden.

Third, don’t obsess over race and gender. Voters who know that Biden excluded everyone but black women from his search already disapprove of that. Of course, some voters are just tuning in now, so Republicans may remind them. But beyond that, voters do not need more convincing, and harping on the “affirmative-action pick” language is more likely to make people sympathize with Jackson. Focus instead on her deficiencies as a judge, her judicial philosophy and worldview, or her service on the board of a racially discriminatory college. Democrats want the conversation to be about “conservatives disrespecting a black woman,” not about Jackson in particular as a jurist. Don’t give them that.

Republicans can score political points, deny Biden any political points, and maximize their odds of defeating the nominee if they stay focused, treat Jackson with dignity and respect, and talk about her record and what progressives do on the bench. There is a time and a place for smash-mouth politics, but this will not be one of those.