By Editorial Board
Yesterday at 8:00 a.m. EDT
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Judge Ketanji Brown Jackson, President Biden’s Supreme Court nominee, seems to be getting rave reviews from Republicans. Sen. Lindsey O. Graham (S.C.) said that she is “a person of exceptionally good character, respected by her peers and someone who has worked hard to achieve her current position.” Sen. Ben Sasse (Neb.) declared that she “has impeccable credentials and a deep knowledge of the law.” Obviously, Judge Jackson exceeds the standard that should apply to Supreme Court nominees: that they be well-qualified, possess an even temperament and sit within the judicial mainstream. Yet Mr. Graham, Mr. Sasse and other Judiciary Committee Republicans are vowing to oppose advancing her nomination when the panel meets on Monday.
The reasons they have concocted are not credible. Mr. Graham voted to confirm Judge Jackson to the U.S. Court of Appeals for the District of Columbia Circuit, the second-most powerful court in the country, less than a year ago. Yet Mr. Graham has suddenly concluded that she has a “record of judicial activism.”
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Mr. Sasse complained that Judge Jackson “refused to claim originalism as her judicial philosophy.” In fact, the extent to which she embraced originalism made many liberals uncomfortable. “I believe that the Constitution is fixed in its meaning,” Judge Jackson said in her confirmation hearings. “I believe that it’s appropriate to look at the original intent, original public meaning, of the words when one is trying to assess because, again, that’s a limitation on my authority to import my own policy.” If that is not good enough for Mr. Sasse, he is committing to reject any Supreme Court nominee selected by a Democratic president. Perhaps that is the point.
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Senators should not impose an originalism test or a living constitutionalism test or any other crude philosophical standard on judicial nominees. The correct way to interpret the Constitution is open to legitimate debate, each judge — even each originalist judge — is different, and presidents should generally get high-quality picks confirmed. Otherwise the federal judiciary would become more political and less effective.
Henry Olsen
counterpointRepublicans are right to oppose Ketanji Brown Jackson
Meanwhile, Senate Minority Leader Mitch McConnell (Ky.) announced he would vote against confirming Judge Jackson because she refused to answer questions about expanding the Supreme Court. Yet he rammed through Justice Amy Coney Barrett even though she also avoided answering the question during her confirmation hearings.
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Republican senators’ hypocrisy peaks when they complain that Democrats mistreated past GOP nominees, such as Justice Barrett and Justice Brett M. Kavanaugh. It was Republicans who obliterated the last shreds of goodwill in the judicial confirmation process when they blocked then-Judge Merrick Garland, whom President Barack Obama nominated in 2016 to replace the late Antonin Scalia, based on scant principle whatsoever.
There is one notable exception: Sen. Susan Collins (R-Maine) announced she would vote to confirm Judge Jackson, a lonely stand that would not have been considered brave in the past — but is now. Other Republicans still have the chance to follow her lead; they can do themselves, their party and the country a service if they do.
For now, by heaping praise on Judge Jackson while opposing her nomination, Republicans seek to obscure the unattractive image of their almost entirely White caucus rejecting the first Black woman ever nominated to the high court. Kind words cannot disguise the fact that they are grasping for pretexts, each more preposterous than the last, to oppose this historic nominee. Their actions will speak louder now — and in the history books.
