The evenly-split Senate Judiciary Committee came to a tie vote Monday on Judge Ketanji Brown Jackson’s nomination to the Supreme Court, though she’s still securely on the path to confirmation.
The deadlock prompted Senate Majority Leader Chuck Schumer (D-NY) to file a motion to discharge the committee from continued consideration of her nomination, followed by debate on the Senate floor. A simple majority of the full Senate can then dislodge her nomination to the floor, where she will ultimately be confirmed with at least one Republican vote.
At that point, she will become the first ever Black woman confirmed to the high court, and its only justice with significant experience representing criminal defendants since Justice Thurgood Marshall.
Her confirmation will be the culmination of a promise then-candidate Joe Biden made on the debate stage over two years ago: “I’m looking forward to making sure there’s a Black woman on the Supreme Court to make sure we in fact get everyone represented,” Biden said then, days before the South Carolina primary that would revitalize his campaign and propel him to the Democratic nomination, and, later, the presidency.
When Justice Stephen Breyer announced his imminent retirement in January, Jackson was the obvious choice for Biden. He’d already elevated her to the D.C. Circuit, putting her through a Senate confirmation mere months ago.
Despite Jackson’s familiarity to the body and near-guaranteed confirmation, Senate Republicans ensured that her committee hearings were contentious and theatrical, many making it plain that they still harbored resentment from what they characterize as Democrats’ egregious treatment of Justice Brett Kavanaugh. Kavanaugh, unlike Jackson, was accused of attempted sexual assault.
Some of the least camera shy members of the committee — Sens. Ted Cruz (R-TX), Josh Hawley (R-MO), Tom Cotton (R-AR) and Lindsey Graham (R-SC) — cherry-picked lines from a handful of child pornography cases to craft the narrative that Jackson has been unusually lenient in sentencing the possessors of the material. While the line of attack was debunked by news outlets, the White House and congressional Democrats alike, the senators spent the lion’s share of their time reiterating the same points. All four earned airtime on Fox News for their efforts.
Though the attacks distorted her record, which fact-checkers found to exist comfortably in the mainstream of federal judges’ sentencing, the narrative gained momentum during the days of questioning. Some Republicans were considering a boycott of Monday’s hearing until they got the pre-sentencing reports from the child pornography cases; a few of their peers, though, dismissed the idea.
Some right wing figures, including Donald Trump Jr., even urged Sen. Joe Manchin (D-WV) to turn against Jackson based on the scurrilous attacks. Manchin put that short-lived campaign to bed last week, when he announced his intent to vote for Jackson’s confirmation. Sen. Susan Collins (R-ME) has since pledged her support too.
The most important revelations of the hearing came not from the Republicans hectoring Jackson on her record, but from those who sent up test balloons about which precedents they’d like the heavily conservative bench to take aim at next. The seemingly imminent overturning of Roe v. Wade hung over their comments about the right to same-sex marriage, access to birth control and even the legality of interracial marriage being wrongly protected by the Supreme Court.
Jackson’s confirmation won’t change the political composition of the Court, leaving a 6-3 conservative supermajority at the helm. These Republican senators have made public the clearest path to date indicating where the right-wing legal world wants to point the Court next.
