WASHINGTON — When Judge Ketanji Brown Jackson won confirmation to a federal appeals courts last year, she had the support of every Democratic senator and three Republicans.
But on Friday, as President Joe Biden prepared to introduce Jackson as his first Supreme Court nominee, one of the GOP senators who voted for her last year was now giving her a chilly reception.
“It means the radical Left has won President Biden over yet again,” Sen. Lindsey Graham, R-S.C., said in a statement responding to news of her nomination. Graham alleged that liberal criticism of his preferred choice, J. Michelle Childs, sunk her chances. He added of Jackson: “I expect a respectful but interesting hearing in the Senate Judiciary Committee.”
The president’s selection of Jackson sets the stage for an election-year showdown in an evenly divided Senate, where Republican resistance to Biden’s agenda has often felt reflexive. On Friday, some Senate Republicans struck a largely critical posture toward Jackson, pointing to a nomination battle expected to fall largely along party lines. They signaled their intent to portray Jackson as a radical jurist — part of their broader midterm attack on Democrats, who they argue have lurched far to the left of much of the country.
With the potential for the nomination to reverberate beyond the halls of Congress in ways that could backfire on the GOP, Republicans also sought to exercise some restraint — with many simply saying that they looked forward to reviewing Jackson’s record, meeting with her and conducting a mannerly confirmation process. The reactions underlined a consequential and unsettled question they were confronting: Exactly how big a fight should they wage?
“The larger issues of the economy and COVID and health care and education always dominate over any particular incident like a Supreme Court nomination for most voters,” said Republican pollster Whit Ayres. “A Supreme Court nomination is very important to the people who care about the court and their decisions. They tend to be base voters.”
There is risk, some Republicans said, in piling on the attacks against a barrier-breaking nominee who would be the first Black woman in the court’s more than two-century history. After Justice Stephen Breyer announced his retirement, some Republicans derided Biden’s stated intention to nominate a Black woman as “affirmative action.” Democrats harshly criticized these comments as offensive and ignorant of the discrimination Black women have faced throughout the country’s history.
Similar attacks against Jackson by Republicans during the confirmation process could alienate suburban swing voters who have turned sharply against Democrats, polls show, and will be key in the midterm elections
The White House on Friday aggressively rebutted GOP attempts to cast Jackson as extreme, noting that she has issued rulings in favor of both parties and highlighting the bipartisan support she has received in past confirmations. In his speech introducing Jackson on Friday, Biden used the word “bipartisan,” in rapid succession to note the support she has received from Republicans before.
In the eyes of most Republicans, Jackson’s nomination is unlikely to be derailed — creating the prospect of a deflating conclusion to a sustained effort to defeat her. Others point to a court whose 6-3 conservative majority is not likely to be altered dramatically if Jackson succeeds retiring Breyer, who belongs to the liberal wing.
Many Republicans prefer to keep the focus on rising crime, inflation and other issues that have put them in strong position to compete in battleground areas and retake the House and possibly the Senate this November. Such issues are likelier to be top-of-mind in the fall than the confirmation process, some maintained.
Some Republicans sought to infuse their criticisms of Jackson with these topics or bolster their argument that Democrats are out-of-touch with most Americans. Senate Minority Leader Mitch McConnell, R-Ky., accused Jackson of being favored by “far-left” groups. At the White House, press secretary Jen Psaki rejected portrayal of Jackson as a leftist.
“She’s ruled in favor of Republicans and Democrats. She’s ruled for and against the government, regardless of whether the government is led by a Democratic president or Republican president,” she said.
The Supreme Court — with its power to shape the law on abortion, guns and a range of other divisive issues — has been an animating force for conservatives in recent years, particularly as the GOP found success filling the federal bench during the Trump administration.
Several potential presidential aspirants eager to cater to the conservative base sit on the Judiciary Committee and they could seek to use the televised confirmation hearings that have come to define recent Supreme Court battles to make a splash.
“When Judge Jackson appeared last year before the Judiciary Committee, I was troubled by aspects of her record, including her record on crime and criminal justice,” said Sen. Josh Hawley, R-Mo., who is seen as a possible future presidential candidate. “I will be thoroughly reviewing Judge Jackson’s record from top to bottom and look forward to speaking with her.”
In his speech, Biden nodded to the praise Jackson received from the Fraternal Order of Police, the country’s largest policing organization.
But it remained unclear which argument would win out in among the public — the White House pitch that they are nominating an eminently qualified and evenhanded judge, or GOP contentions that Biden picked a radical jurist.
To some Republicans, their arguments are bolstered by Biden’s decision not to pick a finalist who had public support from Republicans. Graham had advocated for Biden to nominate Childs, a U.S. District Court judge, who was backed by House Majority Whip James Clyburn, D-S.C. Graham joined Clyburn in arguing that Childs’ background, which included being educated at state schools, gave her more of a common touch than most people nominated for the Supreme Court.
The “Harvard-Yale train to the Supreme Court continues to run unabated,” Graham said. Jackson earned her undergraduate and law degrees from Harvard.
One Republican whose intentions will be watched closely is Sen. Susan Collins, R-Maine, a centrist who has voted for Supreme Court candidates nominated from presidents of both parties. She suggested Friday that she was open to supporting Jackson, who she voted for last year when she was nominated to the appeals court.
“Ketanji Brown Jackson is an experienced federal judge with impressive academic and legal credentials,” Collins said in a statement. “I will conduct a thorough vetting of Judge Jackson’s nomination and look forward to her public hearing before the Senate Judiciary Committee and to meeting with her in my office.”
The third Republican senator who backed Jackson last year, Lisa Murkowski, R-Alaska, also made clear that her vote was up in the air, noting that there is “an incredibly high bar to achieve” for Supreme Court confirmation.
“I’ve been clear that previously voting to confirm an individual to a lower court does not signal how I will vote for a Supreme Court justice,” said Murkowski, who is seeking reelection this year in a field that includes a more conservative Trump-backed Republican, Kelly Tshibaka.
Tshibaka attacked Murkowski’s past support for Jackson and other Democratic-nominated judges in social media posts Friday. “When I’m your U.S. senator, you’re never gonna have to guess what I am going to do,” she said in a Twitter video. “I will support constitutionalist judges. It’s just that simple.”
In recent years, nomination hearings have become highly politicized, making for moments that have gone viral. In 2018, for example, several Democratic senators who were gearing up to run for president sought to show strong opposition to Brett Kavanaugh, who was nominated by President Donald Trump and later confirmed for the bench by the Senate.
Some Democrats were also looking at Jackson’s nomination with an eye on the midterms — signaling that they would embrace the chance to renew and amplify debates with Republicans during the nomination over issues such as health care and abortion. Party strategists feel these issues have galvanized Democratic voters, with the latter emerging as a potentially potent motivator this election cycle after the Supreme Court signaled that it would uphold a law undermining Roe v. Wade later this year.
“Judge Ketanji Brown Jackson’s historic nomination to become the first Black woman to serve on the Supreme Court reinforces the stakes of this year’s election — and why we must defend and expand our Democratic Senate majority with the power to confirm Supreme Court justices,” said Democratic Senatorial Campaign Committee Chairman Gary Peters, D-Mich., in a statement. “Protecting Roe v. Wade, coverage for preexisting conditions, workers’ rights and so many other issues central to the lives of every American are all on the line.”
Other Democrats saw the chance to excite Black voters, many of whom have been demoralized by Biden’s inability to enact sweeping laws on voting rights, policing and other issues he and other Democrats ran on in 2020.
But some Democratic candidates saw other issues taking precedence. “It matters profoundly to America, as would any Supreme Court nominee, but there are a lot of bread and butter issues that are extraordinarily important at this moment in our history,” said Sen. Richard Blumenthal, D-Conn. He mentioned combating the pandemic, taming inflation and fighting crime.
Blumenthal, who sits on the Judiciary Committee, said he planned to talk soon to some Republican colleagues about Jackson’s qualifications. Asked how Biden would push for Republican support for his nominee, Psaki said that the onus is on Republicans to explain why they wouldn’t vote for a judge with Jackson’s qualifications.
“I think the bar here should not be, What is the president going to do? Of course he’s going to engage with Democrats and Republicans. You’ve seen him operate in that way to date. It is: What are Republicans going to do?” Psaki said.