The third day of hearings for Ketanji Brown Jackson’s confirmation to the Supreme Court came to a close on Wednesday following another 10-plus hours filled with character smears about child pornography from Republican senators and more phony umbrage about some out-of-context quotes. At this point, with just one more day of testimony from outside witnesses remaining, it is worth noting that this entire circus is being performed to try to pick off two or three Republican votes—and perhaps one Democratic vote—that will probably not come. One of the reasons Sen. Lindsey Graham is quite literally spitting and screaming about amicus briefs filed on behalf of Guantanamo Bay detainees two decades ago is because, having voted to confirm Jackson to a federal appeals court less than a year ago, he must manufacture sufficient umbrage to vote against her now. Happily for Graham, time has gradually reduced him to a pile of free-floating umbrage held together by hair.
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If we can all agree that the purpose of this charade for Graham is to try to flip Sens. Susan Collins or Lisa Murkowski, and that for Sen. Ted Cruz the purpose of this charade is to goose his own Twitter mentions, and that for Sen. Josh Hawley the purpose is to take what was a fringe “endangering our children” smear campaign last week and push it to the GOP mainstream today, it’s manifestly clear who the real pornographers are this week. But if we can all agree what the GOP agenda has been, I remain utterly mystified by the Democrats. They have the votes to confirm. They are about to irrevocably alter the course of American history. So what are they afraid of?
I wrote earlier this week about the utter failure on the part of Senate Judiciary Committee Democrats to connect this hearing to what is going to be a catastrophic series of progressive losses at the Supreme Court this term, and the almost staggering inability to lay out any kind of theory for progressive jurisprudence, or even a coherent theory for the role of an unelected judiciary in a constitutional democracy. My colleague Mark Joseph Stern wrote today about a broadside attack on the whole idea of unenumerated rights, substantive due process, and the entire line of cases that protect Americans from forced sterilization, indoctrination of their children, and penalties for using birth control, and afford them the right to marry whom they want. More mysterious than this coordinated GOP project to undermine LGBTQ rights, marriage equality, contraception, and abortion—again, none of this is new or shocking—was the almost complete silence from Senate Democrats on these issues of substantive due process, privacy, and bodily autonomy. On the simplest level, the hearing might have been an opportunity to explain why Roe v. Wade is in fact the tip of the constitutional iceberg; that the same doctrinal underpinnings at risk in this term’s looming catastrophe of Dobbs v. Jackson Women’s Health Organization could lead to existential losses of countless other freedoms. But the hearings were framed as if Republicans stand to lose the court and the midterms, while the Democrats behaved as if the future of the courts, the Senate, and democracy itself has no bearing on what happened inside the Senate chamber.
I understand that the decision was taken to just get the nominee confirmed. Take the win. But for those of us watching and waiting to see Democrats support and back the nominee, there was an immense sense of underreaction. Jackson looked alone fending off the QAnon smear brigade for much of these hearings because she was alone, at least until Sen. Cory Booker took it upon himself in his last colloquy to offer up a powerful corrective to the hatred being leveled at her, and to remind us why love can be an equal and opposite reaction to fear.
Chairman Dick Durbin’s inability to control some of the most shocking bullying and abuse from Cruz, Graham, Tom Cotton, and Hawley left observers speechless. At some point, you need to just start gaveling. But there was also a pervasive sense of Democratic senators’ almost chilling unwillingness to go to the mat for their nominee, who was being savaged by Cotton, who called her “not credible,” and Graham, who berated her with the claim that he was sparing her from being bullied like Justice Amy Coney Barrett.
Take my word for this one thing: If you have been subject to abuse, bullying, and intimidation, what you really don’t need to hear from people in power is that they think you are “brave,” or that you’re modeling perseverance and grace. What you really want is for someone to stand beside you and take a punch—or throw one. Yet beyond a handful of such moments, and notably Booker’s final speech, virtually everything Democrats did felt insufficient to the moment. More than that, it felt inexplicable.
Finally—and this actually matters as well—given the opportunity to do anything at all about an information war that opened with Hawley alone attempting to smear a respected federal judge as an enabler of child pornography, and that closed with 10 Republicans signing a letter demanding confidential pre-sentencing reports so they could better assess whether a respected federal judge was someone who is an enabler of child pornography, it seems that Democrats opted to do little to counter even that lie. The first rule of parenting is to impose consequences. If we learned anything at all after Jan. 6, 2021, it should have been that leaving misinformation and lies to fester will only encourage them to grow. And if we learned anything else, it should have been that if there are no consequences for the distortion and lies of craven opportunists like Hawley, seemingly sane Republicans will eventually and eagerly join their clown car. Jackson as responsible for child porn went from crackpot to acceptable in under a week. That is what happens when you choose not to engage with a pernicious lie.
What Republicans put Jackson through today was appalling. The QAnon Reddit smear was appalling, the relentless shouting that she should answer questions she had answered multiple times was appalling, the snide insinuations that maybe she wasn’t bothered by violent child pornography because she’s OK with it was appalling. To be subject to an all-out inquisition about not having clairvoyance about which sex offenders would reoffend by some of the very same people who invited and justified the Jan. 6 attacks on the Capitol beggared belief. And to intimate that this kind of insulting, sneering abuse had been leveled at Barrett, as Graham did, was false to the point of ludicrous.
Still, it feels impossible not to lay some responsibility on the side that holds the gavel and let this happen. I don’t pretend to understand the strategic goals of elected Democrats. But if the objective was to just force this extraordinary woman through the human spanking machine in the hopes she would just survive, well, mission accomplished. But if there was any broader goal, I don’t know what it was. If there was any better narrative than the fact that she was “brave,” I may have blinked and missed it. And if there is some looming existential terror Senate Democrats faced that precluded them from taking a stand, I sincerely hope to learn of it soon. Jackson deserved better than to simply be forced to “persevere” almost entirely alone, as she told us she had learned to do during her freshman year at Harvard. She did persevere, and she was authentic, and truthful, and powerful to boot. And in so doing, and in spite of everything, Jackson showed the world just how lucky we will be when she is confirmed as a justice.
