Ketanji Brown Jackson’s road to the U.S. Supreme Court has highlighted a lot about the country — including what some say is a broken process to get there.
Jackson on Thursday made history as the first Black woman to join the high court, following a 53-47 vote. The federal judge garnered the backing of all 50 Senate Democrats and only three Republicans — Susan Collins of Maine, Lisa Murkowski of Alaska and Mitt Romney of Utah.
But Jackson’s heated Senate Judiciary Committee confirmation hearings last month have led to calls for reforms from politicians on both sides of the aisle and some who have been witnesses in past proceedings.
Collins said in announcing her support for Jackson that the entire confirmation process has moved away from what is appropriate for evaluating a Supreme Court nominee and has become increasingly politicized.
“No matter where you fall on the ideological spectrum, anyone who has watched several of the last Supreme Court confirmation hearings would reach the conclusion that the process is broken,” she said.
Some Democrats say the same, albeit for different reasons. “This was a trial by ordeal. She went through 24 hours of questioning,” Senate Judiciary Chairman Dick Durbin said during a Thursday press conference, adding that each senator had 10 minutes of opening remarks and 50 minutes of questioning. “I’m not sure that is really fair to any nominee.”
He said that in the past the process had been speedier.
“Now it’s become an endurance contest. And I don’t think that serves the purposes that we want to serve.”
Sen. Chris Murphy of Connecticut said this month that “something fundamentally broke in this place” when Senate Republican Leader Mitch McConnell of Kentucky refused to give a hearing to Merrick Garland, who former President Barack Obama had nominated to the bench in 2016. Garland is now attorney general.
Republicans have their own list of complaints about how Democrats have abused the process, dating back to when they controlled the Senate in 1987 and blocked the confirmation of Ronald Reagan’s nominee, the late conservative judge and scholar Robert Bork. They also objected to the 1991 hearing for George H.W. Bush’s nominee Clarence Thomas as he faced testimony of sexual harassment allegations from his former aide Anita Hill.
During her confirmation, Jackson faced intense grilling during three days of testimony. She was frequently interrupted as she defended her past representation of alleged terrorists at Guantanamo Bay, Cuba, as a public defender, in addition to a few sentences she administered as a federal judge in child pornography possession cases that some Republicans said were too lenient — but were in line with those of other judges.
“This is not simply about Jackson’s reputation, which was repeatedly smeared by Republican senators peddling false narratives about her supposed coddling of child pornographers and terrorists,” Hill wrote in a Washington Post opinion piece Thursday. “It is about the legacy and future of the Senate and the Supreme Court itself.”
Hill, now a law professor, said despite her own experiences in the Thomas hearing, she was “shocked by the interrogation’’ of Jackson.
Various ideas have been floated for reforming the process. Hill said the Judiciary committee should adopt standards for taking testimony, including making sure questions are relevant, and banning witness badgering. Others advocating for reforms told President Joe Biden’s Supreme Court commission during a video conference last July that establishing official timelines for hearings and votes could help improve matters.
Others who have made their way to the bench have also raised concerns about the proceedings. Earlier this year, Sonia Sotomayor spoke out about increasing partisanship in the process. Elena Kagan in 2013 called the process “sort of broken” and “political theater.”
Confirmations to the court were once largely bipartisan but have become increasingly politicized in recent decades. Researchers at Princeton University have found that both Democrats and Republicans are increasingly placing a bigger emphasis on the Supreme Court in their electoral platforms — the prospect of naming a justice more often plays into campaigns.
There’s also the aspect of the political parties retaliating for what they perceive as past slights. During Jackson’s confirmation hearings, GOP Sen. Lindsey Graham of South Carolina publicly decried past treatment of Republican nominees at the hands of Democrats, naming Justice Brett Kavanaugh among others. At his 2018 confirmation hearings, Kavanaugh angrily and tearfully denied allegations that he committed sexual assault decades earlier.
