WASHINGTON — Judge Ketanji Brown Jackson will have the next three days to make the case in televised Senate hearings that she should be confirmed as the first Black woman, and first public defender, to be a justice on the Supreme Court.
That historic moment, however, may be dimmed somewhat by the news media’s attention to the Russian invasion into Ukraine, the fact that her confirmation will not change the Supreme Court’s 6-3 conservative majority and because of the decision by most Republican senators to vote against her.
Jackson will make her opening statement Monday and then respond to questions and statements by the Senate Judiciary Committee’s 22 members — evenly divided between Democrats and Republicans — on Tuesday and Wednesday.
"This could be a historic moment for America in the selection of this justice. I hope that the Senate Judiciary Committee rises to the occasion," said Sen. Dick Durbin (D-Ill.), the Judiciary Committee chairman. "I have confidence that it will."
At age 51, Jackson brings a wealth of experience to the table. She has been a law clerk, a public defender, an attorney in private practice, a member of the U.S. Sentencing Commission, a Washington D.C. district court judge for more than eight years, and a D.C. Circuit Court judge.
President Joe Biden chose her to replace retiring Justice Stephen Breyer, whom she served as a law clerk. If confirmed as expected, she will be just the fifth justice selected by a Democratic president in the past 50 years. A Republican president appointed the other 12.
Jackson likely will be confirmed largely along partisan lines, with three or four Republican votes expected at most, in a confirmation process rippling with grudges, payback and an open battle over the ideology of the Supreme Court.
Here are five things to watch for over the next three days.
When Jackson appeared before the Judiciary Committee less than a year ago for her nomination to the D.C. Circuit Court of Appeals, she dodged questions about how she would interpret the Constitution.
Sen. Ted Cruz (R-Tex.), a Harvard Law classmate of Jackson’s, asked her about her view of the concept of a "living Constitution" to be interpreted in the context of the times.
Jackson said, "I have not had any cases that have required me to develop a view on constitutional interpretation of text in the way that the Supreme Court has to do."
This week, though, expect Cruz and other Republicans to press her to explain how she would intend to interpret the Constitution — like Breyer in his embrace of a living Constitution or like the conservative justices who literally read the text to determine the founders’ intentions.
And they’ll seek clues to her views on abortion, affirmative action and other hot issues.
What she says in response will be closely followed, but don’t be surprised if Jackson follows the example of previous high-court nominees and declines to answer.
On the defense
If confirmed, Jackson would become the first former public defender to sit on the Supreme Court. Democrats praised that long-overdue appointment, but some Republicans suggest she might be soft on crime, and maybe even terrorism.
Jackson, an assistant public defender in the appellate division in Washington D.C. from 2005 to 2007, testified last year that the job helped her learn the criminal justice process and influenced her as a judge to be very clear to defendants about each step of the process.
Sen. Josh Hawley (R-Mo.) said he will question Jackson about her representation as a public defender of Khi Ali Gul, an Afghan enemy combatant imprisoned at Guantanamo Bay.
And Hawley told Newsday he will grill Jackson about why as a district court judge she gave shorter sentences than guidelines recommended to some defendants convicted of child pornography.
But she has strong support of Democrats, liberals and even libertarians — Cato Institute Senior Vice President for Legal Studies Clark Neily hailed the appointment of a defense attorney to the court as long overdue and urged Jackson’s confirmation.
Watch for Jackson to mount a strong defense of her record.
The deepening partisanship over the direction of the courts has created what one scholar called a "tit for tat" process, in which the attacks by one side are then thrown back at them by the other side. In this case, it’s attacks on the growth of well-funded and robust outside groups.
In Justice Amy Coney Barrett’s 2020 confirmation hearings, Sen. Sheldon Whitehouse (D-R.I.) blasted what he called big "dark money" groups that bankrolled the Federalist Society and Judicial Crisis Network who picked conservative nominees, including her, for the courts.
Six months later at Jackson’s circuit court nomination hearing, Sen. Thom Tillis (R-N.C.) accused what he called the liberal dark money group Demand Justice of putting Jackson on its shortlist for the Supreme Court, and influencing her ruling ordering a former White House counsel to testify to the House Judiciary Committee's impeachment investigation. Jackson denied the accusation.
Last week, Senate Minority Leader Mitch McConnell (R-Ky.) weighed in, saying, "We need to explore why the far left activists in the country desperately wanted Judge Jackson in particular for this vacancy."
Jackson’s pushback will be worth watching.
Race and recusal
Republicans might be inclined to tip toe around issues of race and gender given Jackson’s groundbreaking nomination to be the first Black woman on the Supreme Court.
But Curt Levey of the conservative Committee for Justice said he hopes they will ask Jackson about "her views on equity, racial preferences, disparate impact" because the court will hear a case next term about college race-conscious affirmative action policies.
Last year, Sen. John Cornyn (R-Tex.) asked her about the role race played in her work as a judge. "I don’t think race plays a role," she said. But she added, "I've experienced life in perhaps a different way than some of my colleagues because of who I am and that might be valuable."
Republicans said they will press Jackson on whether she would step aside from the pending case before the high court on the affirmative action policies used by Harvard and University of North Carolina because she’s a member of Harvard’s Board of Overseers.
Levey and other conservatives say it’s clear she should recuse herself, but some legal ethics experts say it’s not a cut and dried case.
That will be an important question Jackson will have to consider how to answer.
Time to shine
Senate Democrats hope that Jackson will win over the public the way she has won over several of the senators she has visited on her rounds of the Capitol ahead of her hearings.
Sen. Chuck Grassley (R-Iowa), the ranking Republican on the committee, promised that the hearing would not be like the raucous hearings for Justice Brett Kavanaugh in 2018.
Sen. Richard Blumenthal (D-Ct.) agreed.
"I think for the most part, they're going to be fair and balanced," he said. "We may see some shouting and table pounding, but I don't think it will have much effect."
The three days in the spotlight, even if dimmed, will give her a chance to present herself a broader audience that she has had before — and a positive impression could affect how one or two Republicans vote.
"I think that her character and intellect are going to shine through all the questioning," Blumenthal said. "She is a star and I think she's going to impress a lot of people who may know nothing about her."