The Senate Judiciary Committee did not accuse Ketanji Brown Jackson of attempting to rape an underage girl. It did not accuse her of being a mere puppet for partisans personally hellbent on depriving millions of people of healthcare via judicial fiat, and it did not accuse her very nomination to the Supreme Court of being illegitimate.
The bar isn’t very high, but all things considered, the committee granted the nominee to replace Stephen Breyer a respectful and dignified first day of her confirmation hearing. Regardless of one’s perfectly legitimate quibbles with Jackson’s progressive jurisprudence, the bipartisan show of decorum was one befitting of an objectively qualified nominee. The Democrats who wouldn’t shut up about the historic nature of Jackson’s nomination, however, deserve none of the credit for what seemed like somewhat of a detente over judicial warfare.
As anyone who listened to Monday’s proceeding heard approximately a hundred times, Jackson would become the first black woman to sit on the nation’s highest court if confirmed by the deadlocked Senate. And assuming Jackson does get confirmed, it will be because Republicans denied her the same racist treatment Democrats, Biden and current Judiciary Chairman Dick Durbin included, gave to Miguel Estrada two decades ago.
George W. Bush nominated Estrada, a Honduran immigrant and prominent attorney unanimously deemed well-qualified by the ABA, to the U.S. Court of Appeals for the District of Columbia Circuit in 2001. Despite Estrada and the GOP conceding to the increasingly particular demands of Democrats who were claiming to vet his nomination, Democrats ultimately made the unprecedented move not just to filibuster a judicial nominee from joining a court, but filibustering one backed by a clear majority of the Senate, including a handful of Democrats.
Biden, then a senator from Delaware, was not one of them, nor was Durbin. A leaked memo to the senator from his staff indicates pretty clearly why.
Estrada was deemed “especially dangerous, because he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment.”
When faced with a brilliant and promising lawyer of color, not one Democrat joined Republicans in voting Estrada’s nomination out of committee, and Durbin and Biden helped kill his confirmation to the circuit court, an obvious springboard to the Supreme Court. When Republicans were faced with the same scenario last year with Jackson’s nomination to the same bench, two Republican senators, Lindsey Graham of South Carolina and John Cornyn of Texas, joined Democrats to vote Jackson’s nomination out of committee, and three, Graham, Susan Collins of Maine, and Lisa Murkowski of Alaska, voted with Democrats to confirm her.
Although the petty politicking over the courts has spilled over into increasingly public and embarrassing displays of total partisan war, the decisions Democrats made to bring us to this point were no less depraved, only less theatrical. Harry Reid nuking the judicial filibuster may have been the most consequential and obvious inflection point pivoting our trajectory to this delicate moment of the judiciary’s integrity, but it was the Estrada blockade that began it all.
Bush did not nominate Estrada because of his race, but Democrats certainly killed it because of his race. We don’t know whether Biden nominated Jackson to the Circuit Court because of her race, but we definitely know he did so to the Supreme Court because he openly campaigned for the presidency on doing so. What do we call prejudicial behavior based on race? I think there’s a word for that.
There’s one side note to this otherwise unsavory history that may let us hope a GOP deescalation (if it does indeed continue throughout the hearings) will find favor across the aisle. There was a prominent Democrat who did not beclown himself during the disgraceful stonewalling of Estrada’s nomination, a lawyer who in 2002 lauded his former law clerk as “a very independent thinker and confident enough to come to his own conclusions, and won’t just follow along with the Republican herd” and in 2003 as “a person of outstanding character [and] tremendous intellect.” That Democrat would become Biden’s own chief of staff, the omnipresent power within the Oval Office: Ron Klain.
