The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In April, I predicted that Judge Ketanji Brown Jackson's confirmation hearing would be a dress rehearsal for a potential Supreme Court nomination. And, I expected the Republican Senators to go after her very hard. I told Bloomberg:
"I almost feel bad for her because she's going to be destroyed," said Josh Blackman, a professor at South Texas College of Law Houston. She's well equipped to handle that criticism, he said. "But Republicans are going to try to destroy her, to tarnish her so she won't get picked for the Supreme Court."
But that didn't happen at all. Not even close. Her hearing was surprisingly uneventful. She received very few hostile questions. And for the most part, Senate Republicans went easy on her.
I told USA Today:
"I was very surprised how easy the senators went," said Josh Blackman, a law professor at South Texas College of Law Houston and a conservative legal blogger. "It's possible the Republicans decided she would be confirmed no matter what and they would keep their powder dry for a future SCOTUS confirmation … when the GOP has a Senate majority."
Today, Brown Jackson was advanced out of the Senate Judiciary Committee by a 13-9 vote. Two Republicans voted in her favor: Sens. Lindsey Graham (R-S.C.) and John Cornyn (R-Texas). At this point, her confirmation is a certainty.
That process was far too painless. Contrast this glide path to how awfully Senate Democrats treated Miguel Estrada, also was nominated to the D.C. Circuit. The prospect of a Republican President putting the first Hispanic Justice on the Supreme Court was too much for progressives to bear bear. Ditto for Janice Rogers Brown. But here, Republicans did nothing to stop another black female nominee for the same court.
What's going on? Perhaps the Republicans realized Brown Jackson's confirmation to the D.C. Circuit is a fait accompli, so there was no point fighting it. And, the Republicans are keeping their powder dry for a SCOTUS nomination. Mike Davis suggested this answer:
Davis, a former aide to Grassley, rejected the idea that a vote for Jackson now locks any Republican into a vote for Jackson in the future.
"Just because she's qualified for the D.C. Circuit," he said, "doesn't automatically make her qualified for the Supreme Court."
There is another possibility. Senate Republicans may have determined that a Justice Brown Jackson is less of a threat than a Justice Leondra Kruger. And, making KBJ's appointment as smooth as possible may nudge President Biden to pick her over Kruger. In other words, the Republicans would mount a unified front to Kruger, but would let Brown Jackson through with less drama. This easy confirmation process cannot have been lost on Biden and his team. The White House will no doubt measure that factor when deciding between the top two nominees–especially in an evenly-divided Senate.
Meanwhile, we still have no Solicitor General nominee. There is some weird internecine intersectional drama going on. And we are stuck with an Acting Solicitor General. When does Vacancy Reform Act Twitter start to heat up?