Mar 23, 2022

Ketanji Brown Jackson's hearing.

Ketanji Brown Jackson's hearing.

What have we learned so far?

I’m Isaac Saul, and this is Tangle: an independent, ad-free, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Today's topic: 12 minutes.

The Ketanji Brown Jackson hearings. Plus, a question about Tulsi Gabbard running on a Republican ticket.

Supreme Court nominee Ketanji Brown Jackson. Photo: Wikicago
Supreme Court nominee Ketanji Brown Jackson. Photo: Wikicago

Quick hits.

  1. The Pentagon says Ukrainians reclaimed some territory from Russian forces during intense fighting in the city of Mariupol. (The battle)
  2. President Biden is headed to Europe today to coordinate with allies on delivering aid to Ukraine and crafting a new set of Russian sanctions. (The trip)
  3. The United States and United Kingdom struck a deal to end tariffs on British steel and American whiskey. (The deal)
  4. The Taliban broke a promise in Afghanistan to reopen girls' high schools, saying they would remain closed until a plan drawn up in accordance with Islamic law was put in place. (The backtrack)
  5. Project Veritas, a conservative group, said the Justice Department secretly seized a trove of its internal emails in 2020 just weeks after learning the group had obtained a copy of President Biden's daughter's diary. (The story)
  6. BREAKING: Donald Trump has rescinded his endorsement of Mo Brooks in the Alabama Senate race after his campaign faltered and Brooks said it was legally impossible for Trump to be reinstated. (The un-endorsement).

Today's topic.

Ketanji Brown Jackson. Jackson was nominated to become a United States Supreme Court justice on February 25. Yesterday was the second day of Jackson's hearing in front of the 22-member Senate judiciary committee.

She answered questions for 13 hours about her judicial philosophy, her record on sentencing offenders in child pornography cases, her upbringing, Roe v. Wade, critical race theory, and which justices she models herself after. She was also accused of calling George W. Bush and Donald Rumsfeld "war criminals," though fact-checkers shot down the accusation (in a legal filing while representing a Guantánamo Bay detainee, she referred to acts of torture and indefinite detention as constituting war crimes but did not name Bush or Rumsfeld).

In yesterday's hearings, each senator on the committee had 30 minutes to ask questions. And, as senators on both sides tend to do, many spent their time delivering monologues about whatever issues they wanted. Today, the senators will get another 20 minutes each to question Jackson.

There are many angles to cover in a hearing like this. When Jackson was first nominated to replace retiring Justice Stephen Breyer, we covered the debate over her qualifications and the historic nature of her nomination. When these hearings conclude and she is confirmed, as it appears she will be, we'll focus on the debate about her judicial philosophy and how she might change the court.

Today, we're mostly going to provide some commentary about days one and two of the hearings — the topics discussed, how Jackson was treated, and what we learned. However, some discussion of her judicial philosophy will be unavoidable.

To that end, it's worth defining a few terms. Originalism is the enforcement of the "original public meaning" of a constitutional provision, or how it was understood at the time of ratification. Textualism is when judges apply the words of a statute to a ruling rather than applying legislative history or original intent. Both of these terms are typically associated with conservative justices. The counter to these philosophies is judicial pragmatism (often referred to as a "living Constitution") which holds that the Constitution is dynamic, evolves, and must be interpreted to fit the present day even without its actual text being amended.

Below, you'll see some arguments from the left and right, then my take.


What the left is saying.

  • The left criticized Republicans for baseless attacks on and distortions of Jackson's past rulings.
  • They said Republicans focused on culture war issues, not questions of experience, temperament or judicial qualifications.
  • Some argued that Jackson shrewdly navigated the hearings with conservative-friendly language.

In Vox, Ian Millhiser called the attacks on Jackson "nasty even by Republican standards."

"One day after Republican senators promised they wouldn’t levy personal attacks against Supreme Court nominee Ketanji Brown Jackson, several of them generated a storm of misleading — and often offensive — attacks against her. Tuesday, the first day of the hearing where senators on the Judiciary Committee could actually ask questions of Judge Jackson, included allegations from five Republican senators that Jackson is soft on child pornography offenders," Millhiser wrote. "Before those misleading attacks kicked off in real force, Graham stormed out of the hearing after attacking Jackson for providing legal counsel to Guantanamo Bay detainees — and suggesting that by doing so, Jackson endangered national security. Two other Republican senators attacked the high school that one of Jackson’s daughters attends.

"The most inflammatory — and, sadly, the most predictable — allegation against Jackson was that she’s spent her career trying to protect sexual predators, and specifically child pornographers," Millhiser added. "This allegation is narrowly truthful — Jackson did, indeed, sentence these offenders to a prison term below that recommended by the guidelines — but this is the ordinary practice within the federal judiciary... the consensus view among judges and sentencing policymakers is that these guidelines recommend sentences that are too harsh for “nonproduction” child pornography crimes — that is, crimes where the offender views or distributes child sexual abuse material but does not produce it... Jackson handed down sentences that were at or above the probation office’s recommendations in five of the seven cases identified by Hawley."

In The Washington Post, Philip Bump called out Republicans for questioning Jackson about "critical race theory."

"Critical race theory (CRT) was elevated — and expanded — as a way of talking about conservative concerns about the perception that Whites held a diminished position in American society without being explicit about that perception. Here, the subterfuge is stripped away: Republicans are being warned that a Black nominee for the Supreme Court is hoping to inculcate this anti-White agenda," Bump said. "Ask a Republican voter what CRT means, and they are likely to offer up some pastiche of concerns about children being taught that White people are inherently guilty or bad and that the United States is foundationally racist. CRT has been recodified to annex the entire range of cultural constructions that are unpopular with Americans, as [Christopher] Rufo promised — where ‘Americans’ means ‘heavily conservative White Americans.’

"This sits on top of a central concern of many White Republicans: that Whites and Christians are newly disadvantaged in American society. Polling has repeatedly shown that White Republicans see Whites as targets of discrimination to a similar extent as non-Whites; that in other words, 'reverse' racism is rampant," Bump wrote. "You see where this comes back to the initial response to Jackson’s nomination — or rather, the pledge to nominate a Black woman to the Supreme Court. The concern isn’t that so few non-White people have been on the bench, a centuries-long failure to ensure the Supreme Court reflects the country’s population. Instead, it’s that Biden chose to explicitly reject that pattern."

In Slate, Mark Joseph Stern praised Jackson's "shrewd" tactic of endorsing conservative theories like originalism and textualism.

"Her embrace of the conservative legal movement’s prized judicial philosophies delighted many commentators on the right, who cheered Tuesday’s 'thorough rout for progressive theories of law,'" Stern observed. "These commentators are correct that Jackson’s rhetoric signals the triumph of originalism and textualism, which are now firmly established as the default mode of judging. But her rhetoric does not mean that she is further to the right than Democrats assumed, let alone a secret reactionary. The truth is that left-leaning jurists have long deployed originalism and textualism as useful tools of interpretation, and Jackson is canny enough to emphasize them before an evenly divided Senate. Democratic senators may still rail against these methodologies, but progressive judges have figured out how to use them to their advantage.

"Jackson’s rhetorical turn to the right pleased many of her Republican critics," Stern wrote. "This commentary reflects some antiquated assumptions about liberal judging today. Many Democratic politicians do still describe the Constitution as a living or “evolving” document (in President Joe Biden’s words). But progressive jurists rarely do. Instead, they understand that originalism and textualism are genuinely useful tools that can frequently result in a liberal outcome. It turns out that how you apply these theories is just as important as whether you apply them. A rigidly textualist reading of the Civil Rights Act, for example, protects LGBTQ employees, while a looser analysis that factors in congressional intent does not."


What the right is saying.

  • The right said Jackson got the more respectful hearing that past conservative nominees deserved but did not.
  • Some said her answers showed how liberal judicial viewpoints are dying out.
  • Others said liberals could learn from Jackson's love of America.

Tiana Lowe said the GOP refused to give Jackson "the racist treatment Sen. Dick Durbin and President Joe Biden gave Miguel Estrada.”

"The Senate Judiciary Committee did not accuse Ketanji Brown Jackson of attempting to rape an underage girl," Lowe wrote. "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.

"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," Lowe wrote. "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.'"

Dan McLaughlin said the hearing was a "rout for progressive pieties."

"My hopes for Ketanji Brown Jackson departing from the party line on the bench are slim," McLaughlin said. "Even with that in mind, however, this hearing so far has been a thoroughgoing rout for progressive theories of law and politics. Jackson has repeatedly embraced interpreting the Constitution according to its original public meaning. She affirmed that 'the Supreme Court has established that the right to keep and bear arms is a fundamental right' (although that doesn’t commit her to adhere to that view herself).

"Asked by Chuck Grassley about Justice Stephen Breyer’s tendency to cite international law as a source for interpreting the Constitution, Jackson said that she respectfully disagreed with her former boss, and that international law should not be used to determine the meaning of the Constitution," he added. "Asked to name a justice whose philosophy resembles her own, she could have named Breyer, but she didn’t, and declined to name one, instead pointing to her own record. She has continued to speak movingly about the cops in her family and the role of, and need for, police. She talked about how her experience growing up was 'completely different' from her parents’ attendance of segregated schools, and she cited 'how far we have come' as a sign of 'the greatness of America.'"

The Wall Street Journal said liberals could learn something from Jackson.

"We’d still like to hear her speak candidly about how she thinks judges ought to interpret the Constitution," the board wrote. "But it was heartening to hear Judge Jackson affirm the promise of America. Too many on the left seem to think the U.S. is structurally, irredeemably flawed. President Biden has joined this narrative with his focus on 'systemic racism' and 'equity' in place of 'equality.' Judge Jackson might or might not agree with the ideal of colorblindness, to say nothing of her views on specific controversies like the one involving Harvard’s admissions policies. Yet she appears to see the best in America.

"This has been a theme for Judge Jackson in the short time that the public has been getting to know her. 'Among my many blessings—and indeed, the very first—is the fact that I was born in this great country,' she said last month at the White House, when Mr. Biden nominated her. 'The United States of America is the greatest beacon of hope and democracy the world has ever known.' We expect to disagree with Judge Jackson if she is confirmed to the Supreme Court," the board concluded. "But the progressives supporting her nomination could stand to learn from her about the country that has elevated her to such judicial heights."


My take.

In many ways, Judge Jackson sounded like a product of a conservative laboratory.

She spoke about the anxiety of having loved ones who serve in law enforcement. She spoke about her belief that the Supreme Court has affirmed the second amendment as a "fundamental right." She spoke about the validity of originalism and of a judge's "constrained" ability to interpret text. She spoke about the time she ruled in favor of the Republican National Committee when it sought access to Hillary Clinton's emails. She spoke about the greatness of America she's witnessed in her own lifetime. In any other era, under any other circumstances, you might think she'd be flying through the Senate with at least a third of Senate Republicans voting for her.

Unfortunately, we are not in that era.

Instead, a huge chunk of the 4.5 hours of the hearings I watched live were spent on questions about child pornography sentencing and critical race theory. Jackson testified for 13 hours, and while it’s clear from the transcripts that she got to talk about many things, the dishonest attacks against her record were a reminder that we're still living in a hyper-partisan time — even when the nominee is singing in a typically Republican key.

Sens. Ted Cruz (R-TX), Lindsey Graham (R-SC), Marsha Blackburn (R-TN), Tom Cotton (R-AR), and Josh Hawley (R-MO) accounted for five of the 11 Republicans on the Senate judiciary committee, and each spent nearly all their time subtly (or not so subtly) accusing Jackson of having a soft spot for people who watch child pornography, terrorists, drug kingpins and everything that has to do with the increasingly undefinable term "critical race theory."

The most pernicious of these claims is the allegation that Jackson had a habit of under sentencing people convicted of possessing child pornography. As Jackson explained over and over, and as conservative legal scholars like Andrew McCarthy honorably pointed out, the allegations have no merit. It is common for prosecutors to recommend sentences below the guidelines, which means it's obvious a judge regularly would as well. Some senators appeared to think judges should be rubber stamps for prosecutors, which is not at all how it works.  Additionally, judges are also guided by the Probation Office, an arm of the court that advises on sentencing during trials. As McCarthy pointed out, in most of the cases Hawley and others brought up, Jackson's sentences equaled or exceeded the recommended sentence, meaning the reality was actually the opposite of the allegation.

In other words: It was all hogwash. But no matter how many times she tried to explain this, the senators kept coming back to it. Their intent, to me, seemed obvious. They want to associate her name with "soft on crime" or "soft on child pornography." Which, for whatever it’s worth, is part of a larger trend in some fringe conservative circles of associating Democrats, liberals, and "Hollywood elites" with pedophilia. Some astonishing polling now shows 15 percent of Americans believe Satan-worshiping pedophiles run the country, and that half of Trump supporters apparently think top Democrats are involved in child sex trafficking (which implies this is a belief held by many of my readers).

All of this, of course, distracted from what could have been a much more fascinating and rewarding exploration of Jackson's views on the Constitution. That's something I'm excited to do in a future edition of Tangle, and given how much of the conservative punditry criticized Republican senators and celebrated Jackson's apparent reverence for originalism, it’s something I hope the commentary moves toward in earnest going forward.

Of course, my expectations are low. As is usually the case these days, Democrats seemed to have little interest in doing anything but heaping praise on their nominee. Meanwhile, Republicans are clearly still furious about the warzone that Brett Kavanaugh’s hearing became (which they referenced repeatedly). During Amy Coney Barrett's nomination process, some liberal pundits stooped to the rather disgusting accusation that her adopted children were props. Democrats in the room implied she may not have been able to do her job because of her religious views and got increasingly confrontational as the hearings went on, not less so.

My biggest gripe with the Barrett nomination was always the process, but just as I said about Barrett on several different occasions, there is zero doubt about Jackson's qualifications.

Throughout the day, I was struck by how intelligent, knowledgeable, and level-headed Judge Jackson seemed, especially in contrast to some of her questioners. She spent much of the day explaining to Congress that it was actually their job to set sentencing guidelines, not hers, an important reminder of how our government is supposed to function. Her love of country was as apparent as her belief that all Americans deserve fair representation, forgiveness, and second chances. She seemed practical, empathetic, humble and cautious, and her personal story will probably be the subject of a movie one day. She was just as impressive as advertised, and the country is lucky to have her.

At this point, she deserves to peel off a few Republican votes, even in this hyper-polarized climate (especially given the fact that Democrats can get her seated with or without Republicans). But at the very least she’s already given every American reason to be encouraged.


Your questions, answered

Q: Tulsi Gabbard is all over the conservative outlets these days. Makes a lot of sense given her military, congressional and foreign policy background, but I wonder if there's more at play here. If the Republicans come to their senses and do not hand over the nomination to Trump in 2024, what are your thoughts on someone like DeSantis or Crenshaw naming her as their running mate?

— Mark, Carver, Massachusetts

Tangle: I'm tempted to say "hell no," but I'll leave a tiny bit of wiggle room just so I don't have to take my foot out of my mouth if it comes to fruition. But the odds of this seem very, very low.

I agree that Gabbard is — um — interesting. Frankly, besides her anti-war stances, I'm not really sure what she stands for at all. She seems to be a political chameleon, and I don't mean that as a compliment. I like some of the stuff she says, but she strikes me as the kind of person who changes her tune depending on who’s listening.

Anyway, I think a proper lens to view Gabbard through is the same one many liberals use to view Mitt Romney, Liz Cheney or Adam Kinzinger. They are useful and celebrated to a point — but running mate? In a presidential race? I doubt it.

I think it has about the same odds as the eventual Democratic nominee picking Romney or Cheney, which I'd peg at very, very low. If Republicans want a woman on the ticket with wide appeal they'd go to Nikki Haley, Iowa Gov. Kim Reynolds or Sen. Susan Collins (R-ME), not someone who wants to end cash bail, eliminate private prisons, raise the minimum wage, study reparations, offer free college and ban assault weapons, as Gabbard has said she wants to do.

Want to ask a question? You can reply to this email and write in (it goes straight to my inbox) or fill out this form.


A story that matters.

Over 3.6 million refugees have now fled Ukraine, and approximately 6.5 million more are "internally displaced." That means more than 10 million Ukrainians — a quarter of the country's population — have been displaced since the invasion began. Refugees are now crossing into Poland, Romania, Hungary, Moldova, Slovakia and even Russia. Among those refugees are more than 1.5 million children who have left Ukraine — about 55 kids a minute since the conflict started. The U.N. has warned that the influx of refugees will not just leave millions of people without school or necessary medical supplies, but will also pose major housing challenges to the European countries trying to help those refugees. The Washington Post has the story.


Numbers.

  • 51. The age of Ketanji Brown Jackson.
  • 17. The average number of years served by a Supreme Court justice, though they are confirmed for life.
  • 36. The longest tenure of any Supreme Court justice, served by William O. Douglas from 1939 to 1975.
  • 115. The number of justices who have served on the Supreme Court since 1790.
  • Three. The number of Republican votes Jackson got in the Senate when confirmed to a federal appeals court last year.

Have a nice day.

In Houston, a historic theater seemed to have become one of the many casualties of Covid-19 — until its supporters jumped in to save it. The River Oaks Theatre opened in 1939 and "had been an art house theater showcasing independent and foreign cinema," according to the Associated Press. But the theater had to close up shop thanks to economic challenges from the pandemic. An army of supporters who met every week via Zoom banded together, inundated the mayor's office with emails, held fundraiser events and eventually were able to resurrect the theater. The Associated Press has the story.


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