A new report from Business Insider details how the Senate confirmation process for U.S. Supreme Court nominees has gotten more contentious over the years. The outlet uses the recent confirmation hearing of Ketanji Brown Jackson as a case in point.
However, Business Insider leaves out one key detail that separates Jackson’s Senate confirmation hearing from other recent, contentious confirmation hearings, namely, the fact that President Joe Biden picked Jackson not based on merit, but because of her race and gender.
Remember what Biden said shortly after Justice Stephen Breyer’s retirement announcement?
“I’ve made no decision except one,” Biden said. “The person I will nominate will be someone with extraordinary qualifications, character, experience, and integrity. And, that person will be the first Black woman ever nominated to the United States Supreme Court. It’s long overdue, in my view.”
In its report, Business Insider decries the opposition that Jackson faced during the confirmation hearing from Senate Republicans.
“While Democrats sought a bipartisan vote on Jackson’s nomination, many Republicans — still relitigating the confirmation proceedings of previous conservative nominees — made last month’s hearings a proxy on the nation’s cultural fault lines,” the outlet writes.
It adds, “throughout the scrutiny of Jackson’s record, race, criminal justice, and gender dynamics were used as a cudgel by many Judiciary Committee Republicans as they sought to throw Jackson off-balance despite her largely positive reception from the American public.”
From there, Business Insider goes on to provide the reader with a historical run down demonstrating how Supreme Court nominee confirmation hearings have gotten more and more contentious since the Senate’s infamous rejection of nominee Robert Bork in the 1980s.
A bad analogy
The outlet notes how the Senate has gone from unanimously approving Supreme Court nominees to now voting, by and large, along party lines. Then, the outlet tries to simply add Jackson’s confirmation to the list of contentious hearings that are an outgrowth of this “Bork effect.”
But, the fact of the matter is that many of the contentious confirmation hearings have been contentious as the result of baseless attacks on Republican nominees by Senate Democrats. We saw this recently, perhaps most notably, with the attack on Brett Kavanaugh who, without evidence, was accused of sexually assaulting a woman decades earlier when they were in the same school.
This baseless attack is very different from the attack by Senate Republicans on Jackson. Biden made it clear that he was nominating Jackson because of her race and her gender, and this made it the Senate Republicans’ duty to inquire about Jackson’s merit. That is when other things came to light, such as the fact that Jackson, in the past, had gone easy on child pornography offenders.
So yes, Supreme Court nominee hearings have gotten more contentious, and this is a real problem, or at least the symptom of a problem: the judiciary becoming more politicized than ever. But, this has nothing to do with the contentiousness of Jackson’s hearing. This stems from the fact that Biden picked a nominee on race and gender rather than merit.