“I just find those words offensive frankly.” Those words of Sen. Amy Klobuchar (D., Minn.) on Fox Sunday were telling and timely. Klobuchar was responding to my column referring to the nomination of Judge Ketanji Brown Jackson as a “political deliverable” by President Joe Biden. Even before Jackson’s appearance on Capitol Hill, it appears that any acknowledgement of her nomination as fulfilling Biden’s express pledge is already being called “offensive.”
It does not matter that most of us have said that Jackson has a stellar record, including in that column. This includes years of experience on the bench, which is a great strength for a nominee. It also does not matter that I agree with Klobuchar’s assessment of Jackson’s remarkable life story and praised her appearance at the White House.
In modern American politics, confirmations (for both parties) are about political deliverables and calculations. For supporters, the key is to make criticism or even questioning untenable. This weekend, while Sen. Klobuchar was calling the words “political deliverable” offensive, Rep. Jim Clyburn (D., S.C.) was on a different Sunday show to say that Jackson’s confirmation is “beyond politics” and that the vote is not about her alone but “about the country, our pursuit of a more perfect union.”
Of course, it has long been about politics and what is either offensive or inviolate depends greatly on who is nominating a candidate.
On CNN, when the nomination of Amy Coney Barrett was announced, a panel agreed with host Chris Cuomo in stating that Barrett was “a big deliverable.”
Two years earlier, liberal commentators referred to Brett Kavanaugh as “a generational deliverable and a solid conservative majority on the Supreme Court.”
Before that, CNN’s Gloria Berger referred to Neil Gorsuch in a list of “deliverables.”
Even those of us who admire Barrett acknowledged that her nomination was a major deliverable. None of that was viewed as offensive.
It was also not offensive for Democratic senators to accuse Barrett of being nominated to vote against the Affordable Care Act, surrounding her with pictures of people who she was expected to harm or kill in that mission. At the time, I wrote that the suggestion was preposterous, the case was extremely unlikely to overturn the ACA, and Barrett was more likely to vote to preserve the Act in that case. That is precisely what she did but not a single Democratic senator apologized for the treatment of Barrett.
Democratic senators also said that they would vote against Barrett solely on the basis of her conservative approach to constitutional interpretation while demanding that she confirm her vote on future cases dealing with Roe v. Wade. I warned at the time that they were creating a type of “Barrett Rule” that could be applied to the next Democratic nominee. That nominee is now Jackson who refused to discuss her own judicial philosophy in her appellate nomination. If Democrats were allowed to vote against nominees like Barrett on the basis of her judicial philosophy, Republicans are unlikely to view the same grounds as barred in this nomination.
What is particularly striking about the offense taken early on Jackson is that President Biden was the first to cite this nomination as a deliverable to win votes in the primary. Biden declared that he would only consider black females for the first vacancies and campaigned on that promise with African American voters. No one claimed that was offensive or wrong, even though the Supreme Court itself has declared such threshold race and gender exclusions to be unconstitutional or unlawful by schools or businesses.
Jackson was also the choice of far left groups who opposed the more moderate short lister District Judge J. Michelle Childs. The nomination delivered a reliable vote on the left for the Court.
The real question is whether the Senate will tolerate any serious questions about Jackson. The Democrats insisted that Barrett discuss her judicial philosophy and Barrett did so. That was appropriate. A nominee should not be judged simply on the basis of a life story. Barrett was also highly accomplished, but the Democrats were unrelenting in their opposition. Other nominees like Robert Bork were highly credentialed but were rejected on the basis of judicial philosophy.
The Democrats maintained a two-year filibuster (yes, the “relic of Jim Crow”) against Judge Janice Rogers Brown, who was seeking to become only the second black woman on the D.C. Circuit. Brown also had an extensive record of experience and incredible life story. She was born to Alabama sharecroppers and grew up in the segregated South and worked as a single mother. Like the equally moving life story of Clarence Thomas, Brown’s background was largely dismissed or ignored by the media and Democratic senators. She was opposed by two future Democratic presidents: Barack Obama and Joe Biden.
Democratic senators also used the filibuster to block a vote on Miguel Estrada, who finally relented and withdrew his name. Estrada also had a moving and accomplished background. Arriving at the age of 17 with little English, he went on to graduate magna cum laude and Phi Beta Kappa from Columbia and then magna cum laude from Harvard Law School where he served as editor of Harvard Law Review. Sound familiar?
Estrada was shredded by the Democrats. After he withdrew, Sen. Ted Kennedy (D., Mass.) took a victory lap and said ”This should serve as a wake-up call to the White House that it cannot simply expect the Senate to rubber-stamp judicial nominations.”
None of this matters, of course. Despite the campaign pledge leading to the Jackson nominee, any reference to the threshold criteria or the campaign on the left will not be tolerated.
President Biden can continue to campaign on delivering on his promise with this nomination, but the nomination cannot be described as a deliverable. However, past and future Republican nominees can be deliverables, but their accomplished backgrounds are largely unmentionable.
During the primary, critics accused Biden not of treating this future nomination as “beyond politics” but treating it as politics itself. Ironically, it was Clyburn who told Biden to make the pledge in the presidential debate. Biden did so and secured not only Clyburn’s endorsement but won the critical South Carolina primary. That does not make Jackson an unworthy candidate for the Court. As I have said, she has a great resume and reputation. In the end, politics propels nominations, it does not define nominees. However, the question is whether the “beyond politics” narrative will put this nominee beyond serious scrutiny in the confirmation process.