Republicans are right to oppose Ketanji Brown Jackson

It is rare for me to site an opinion piece from radically left wing Washington Post for a center position on this website. Rare indeed. But, the one referenced below, by Henry Olsen, gives such a realistic view of the political nature our Supreme Court has evolved into, that it requires such a position.

The ‘sad but true’ situation is presented extremely well with a seemingly simple action needed as its conclusion.

Could we evolve back to such a position?

As the Senate Judiciary Committee begins its hearings to consider Ketanji Brown Jackson’s nomination to the Supreme Court, it’s clear that virtually all Republicans will oppose her. They are right to do so, just as Democrats were right to oppose the confirmation of Amy Coney Barrett.

It’s simply a matter of fact that the Supreme Court is a political football. That’s a result of the court’s own volition. Over the past century, it has extended its jurisdiction into a wide panoply of predominantly political issues. On many crucial matters, the final word rests with the court, not with Congress or the White House. So it’s entirely reasonable for elected officials to move heaven and earth to ensure their allies control the crucial body.

That recognition is why Democrats broke norms surrounding the confirmation of Supreme Court justices in 1987 by opposing the nomination of Robert H. Bork.

It was thus necessary for Democrats to destroy Bork’s reputation to ensure his defeat. Sen. Edward M. Kennedy of Massachusetts alleged in a speech that “Robert Bork’s America” would see the return of legal segregation, an absurd claim.

Since then, the norm of deferring to the president on judicial appointments slowly eroded (though Republicans were slow to return fire, allowing Stephen G. Breyer and Ruth Bader Ginsburg to sail through the Senate on votes of 87 to 9 and 96 to 3, respectively). By the end of President Barack Obama’s second term, pressure had built to such an extent that both parties felt their interests would be irrevocably damaged if someone who opposed their views sat on the high court.

We’ve reached this state because the two parties have radically different judicial philosophies. Democrats favor the court expanding its jurisdiction into political matters; Republicans favor a restrictive view, generally deferring to democratically elected bodies at all levels of government rather than making the court the final arbiter of public policy. This is one of the most important political issues of our time. Republicans and Democrats who ignore this reality when determining who sits on the court simply do not align with the concerns of their supporters and would rightfully court a primary challenge.

Thus, conservatives ought not support Jackson’s nomination, despite her legal accomplishments. Indeed, no conceivable appointee by a Democratic president could merit conservative support in the current environment. It’s impossible to imagine a vetting process that would allow a Democratic nominee to break with their party’s reigning judicial philosophy. The same can be said of Republican appointees. As a result, any senator who votes for the opposing party’s nominee would be backing a philosophy they have vowed to oppose.

This might be unfair to Jackson, but one need only observe the pattern of votes on the court over the past decade to see why it is necessary. In case after contentious case, Democratic-appointed justices have voted in lockstep to back the position supported by mainstream Democratic groups. Republicans should assume Jackson would follow suit unless she expressly repudiates some of those views in her hearings. But progressives would surely howl in righteous anger at the perceived betrayal if she did. Politicization of the judiciary works both ways.

It should be clear that this politicization is bad for the court and the country. But this is simply another fault line in our divisive and corrosive political wars. Ultimate victory will come only when one party transcends our current divisions to create a lasting new political majority. Until then, Republicans should not unilaterally disarm and support their judicial foes.

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