Senate Democrats Are Never Prepared For the Fight

Senate Republicans weren’t able to sink the nomination of Ketanji Brown Jackson during this week’s Supreme Court confirmation hearings, but their failure was certainly not for lack of borderline-defamatory trying. Over the course of three-plus days, several members of the 2024 GOP presidential primary brigade harped incessantly on Jackson’s record of sentencing child pornography offenders when she was a federal district court judge in Washington, D.C.. The party’s primary strategy for opposing the first-ever Black woman Supreme Court nominee was also a clumsy, transparent effort to raise the hackles of its Q-poisoned-brained base. 

The attempts to portray Jackson as a secret pedophile supporter were as stupid and meritless as they were disgusting. At the Sentencing Law & Policy Blog, law professor Doug Berman called Jackson’s record “pretty mainstream,” given that federal judges typically go below the guidelines’ recommendations in about two-thirds of cases. At the conservative National Review, where one pundit recently called for Republicans to oppose Jackson’s confirmation on the grounds that she “does not believe in the rule of law,” Andrew McCarthy defended her record and characterized the attack, which was first surfaced by Missouri Senator and insurrectionist sympathizer Josh Hawley, as “meritless to the point of demagoguery.”

None of this, however, was apparently relevant for at least two unnamed Democrats on the Senate Judiciary Committee, who shared with the D.C.-area newsletter purveyors at Punchbowl their “concerns” that Jackson hadn’t been “adequately prepared” for the Republican Party’s coordinated smear campaign. While the lawmakers who spoke to Punchbowl deemed her “far better” on Wednesday than on Tuesday, by that point, one sighed, “the damage had already been done.”

These are the same Democrats who spent most of this week sitting quietly as the onslaught continued, apparently having concluded that mustering the courage to defend President Joe Biden’s nominee would have been too much of a burden to bear. It is beyond me to imagine what more Jackson could have done to better manage this geyser of spurious conspiratorial bullshit unleashed by sneering goons whose primary strategy was gesticulating wildly and talking over her whenever she dared open her mouth to deliver a response. A group of sitting U.S. senators criticizing her “preparation” for this circus is like firefighters standing outside a burning house and whispering to one another that buildings really should try to be less flammable.

Watch, for example, the grand finale of South Carolina Senator Lindsey Graham’s performance on Wednesday. In theory, each senator had 20 minutes to ask Jackson questions. At the expiration of Graham’s already-generously-timed allotment, Committee Chair Dick Durbin of Illinois informed Graham that his turn was over.

“Well, please, Mr. Chairman,” Graham snorted. From there, he spent nearly ten full minutes haranguing Jackson about her personal views on the Brett Kavanaugh hearings, sharing his personal views on federal sentencing policy, and, above all, whining about his supposed frustration with her supposed refusal to respond to questions when everyone in the room could tell he had no interest in listening to the answers.

Durbin and Vermont Democrat Patrick Leahy, who previously chaired the committee, occasionally banged the gavel, asked Graham to allow Jackson to respond, and called for order. But at no point did any Democrat do what the situation demanded, which is turn on their mic and tell Lindsey Graham, at least figuratively, to shut the fuck up. 

The charge that Jackson was unprepared was also belied by the substance of her testimony in those fleeting moments Graham allowed her to deliver it. While explaining the specific sentences meted out, Jackson also offered the assembled lawmakers a nuanced summary of the troubles she and all federal judges face when trying to apply dated sentencing guidelines to modern child pornography cases, and made a strong case that lawmakers should take action to address them. The Democrats tut-tutting to Punchbowl were apparently as interested in hearing her out as Graham was.

Never one to be out-grandstanded, Texas Senator and amateur children’s book promoter Ted Cruz was practically already arguing with Durbin for more time when Durbin told him his time had expired. As Cruz howled about cases that Jackson had already explained multiple times to multiple Republican senators, Durbin asked him to follow the rules; when Durbin attempted to gavel him out, Cruz retorted that he could “bang it as loud as you want.” Reporters in the hearing room later observed Cruz searching his mentions on Twitter from the dais, which should give you a pretty good idea about what he intended to accomplish.

The Democrats’ failure to engage here is especially galling given that we are less than four years removed from Graham, of all people, launching into snarling histrionics during the Brett Kavanaugh hearings in a last-ditch bid to save the sagging nomination. “What you want is to destroy this guy’s life,” he shouted. “Boy, y’all want power. God, I hope you never get it!”

Like all of Graham’s performances, this one came off as more than a little contrived. But it also demonstrated something resembling a backbone, which is more than can be said for any Democrat who sat in their chair on Wednesday and frowned disapprovingly at all the breaches of decorum unfolding before them. Republicans were willing to fight with everything they had for Kavanaugh, who was a weak nominee before he handled multiple credible allegations of sexual assault with the grace of a four-year-old encountering a buffering YouTube stream. When Ketanji Brown Jackson faced a cynical psuedoscandal manufactured by political opponents try and link her to child sexual predators, Democrats spent the afternoon worrying that the act of raising their voices would immediately summon a stern librarian to shush them.

As the chair, Durbin might not be well-situated to act as the Democrats’ designated bomb-thrower. But his colleagues’ refusal to use their power to confront Jackson’s glorified bullies was embarrassing, and the attempt by at least some members to shift blame to Jackson is unconscionable. At Slate, Dahlia Lithwick was left baffled by this “almost chilling unwillingness to go to the mat for their nominee.” “If the objective was to just to force this extraordinary woman through the human spanking machine in the hopes she would just survive, well, mission accomplished,” Lithwick wrote. “But…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.”

Fortunately for Democrats, the public appears to be smarter than Hawley and company give them credit for; support for Jackson’s confirmation is the highest of any recent Supreme Court nominee, and there is little evidence that this week made a skeptic out of anyone who wasn’t one already. But their abdication of their responsibilities on Wednesday is a microcosm of the Democratic Party’s longstanding approach to judicial power, which can be fairly summarized as “assume their Republican pals will cooperate and that everything will work itself out eventually.” Republicans understand that controlling the courts sometimes requires taking some swings. Democrats remain content to walk face-first into them.