Feb 28, 2022

The nomination of Ketanji Brown Jackson.

The nomination of Ketanji Brown Jackson.

Plus, an update on Ukraine and a reader question about Ukrainian media.

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 read: 12 minutes.

We're breaking down the nomination of Ketanji Brown Jackson. Plus, an update on Ukraine, a reader question about Ukrainian media, and some important quick hits.

Judge Ketanji Brown Jackson, honoree at the Third Annual Judge James B. Parsons Legacy Dinner, February 24, 2020, University of Chicago Law School. Photographer Lloyd DeGrane.
Judge Ketanji Brown Jackson, honoree at the Third Annual Judge James B. Parsons Legacy Dinner, February 24, 2020, University of Chicago Law School. Photographer Lloyd DeGrane.

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An update in Ukraine.

Since Friday, the situation in Ukraine has continued to deteriorate. This is a good piece from the Kyiv Independent summarizing the first 72 hours of the war. Today, as Russian soldiers face fierce resistance, leaders from Russia and Ukraine are meeting in Belarus for negotiations. Putin has ordered Russia's nuclear weapons prepared for increased readiness to launch in response to what he called "NATO aggressiveness." Belarus is poised to send its own soldiers into the war to fight alongside Russia, new reports indicate. The U.S. State Department responded by shuttering its embassy there and authorizing its diplomats to leave Russia.  

The U.S. also announced it was cutting off Russia's central bank and banning U.S. citizens or companies from doing business with them. Russia's economy is already cratering under the weight of worldwide sanctions. More than 500,000 Ukrainians have now fled the country. According to Ukraine’s Defense Ministry, as of 6 a.m., Russia has lost around 5,300 soldiers, 29 planes, 29 helicopters and 151 tanks. Meanwhile, 352 civilians have been killed and over 2,000 reportedly injured.


Quick hits.

  1. The EU banned all Russian planes from its airspace and announced a $560 million military aid package for Ukraine. Germany also announced it would increase its defense spending and has reversed its policy of not sending lethal military aid to conflict zones. (The push)
  2. Sen. Mitt Romney (R-UT) called Reps. Marjorie Taylor Greene (R-GA) and Paul Gosar (R-AZ) "morons" after the two lawmakers attended a white nationalist conference over the weekend. (The comments)
  3. During a speech at the Conservative Political Action Conference (CPAC), former President Trump all but confirmed that he plans to run for president again in 2024, saying, "We did it twice, and we'll do it again. We're going to be doing it again, a third time." He also won a CPAC straw poll to be the next nominee. (The speech)
  4. U.S. Covid-19 cases continue to fall, and the seven day average of new cases is now 68,000 per day, the lowest since July. Hospitalizations have fallen 70%, roughly 85% of deaths in January were in unvaccinated patients, and only 3% were in fully vaccinated patients who also received booster shots. (The numbers)
  5. A new Washington Post-ABC News poll has President Biden at 37% approval, 55% disapproval, the lowest of his presidency. (The poll)

What D.C. is talking about.

Ketanji Brown Jackson. On Friday, President Biden nominated Jackson, a federal-appeals court judge and former clerk of retiring Justice Stephen Breyer, to be the next addition on the Supreme Court. Jackson is considered a highly qualified nominee who, at 51, would ensure a strong progressive wing of the court for years to come, even if she does not change the current 6-3 conservative majority on the court. If confirmed, Jackson would become the first Black woman to ever serve as a Supreme Court justice, the third Black person and just the sixth woman of the 115 justices ever chosen.

Biden's decision to tap a Black woman for the bench fulfills a promise he made on the campaign trail exactly two years before. The promise came at a turning point for Biden's 2020 presidential campaign. “For too long our government, our courts, haven’t looked like America,” Biden said on Friday. “I believe it is time that we have a court that reflects the full talents and greatness of our nation.”

Jackson spoke briefly, thanking and pointing to her family of judges and lawyers, an uncle who was imprisoned on drug charges and another who served as Miami's police chief, to highlight her first-hand experience within the broad spectrum of the legal system.

“If I’m fortunate enough to be confirmed as the next associate justice of the Supreme Court of the United States, I can only hope that my life and career, my love of this country and the Constitution, and my commitment to upholding the rule of law and the sacred principles upon which this great nation was founded will inspire future generations of Americans,” Jackson said.

Democrats have set a goal of confirming Jackson by April 8. The war in Ukraine and the absence of Sen. Ben Ray Lujan (D-NM), who suffered a stroke last month, could complicate those plans. Three Republicans voted to confirm Jackson to the appeals court last year, but one of them, Sen. Lindsey Graham (R-SC), had urged Biden to pick someone else.

Below, we'll take a look at some reactions from the left and right. Then my take.


What the left is saying.

  • The left supports her nomination, saying her credentials are flawless.
  • Many are thrilled Biden chose Jackson, who was seen as the most ethical and progressive choice.
  • They warn that Republicans will still try to smear her despite her obvious qualifications.

The Washington Post editorial board said it was "historic and sound."

"There has been carping from some on the right — as though politics and demographics have never played a role in the selection of justices in the past, including when Ronald Reagan as a presidential candidate declared he would appoint the first female justice. 'It is time for a woman to sit among our highest jurists,' Reagan said in October 1980, which set the stage for the selection of Sandra Day O’Connor," the board noted. "Four decades later, Mr. Biden had a notable pool of experienced Black female jurists from which to choose. One hundred eight White men have been elevated to the court, many of them with credentials less impressive than those possessed by the contenders under consideration this time around.

"Judge Jackson by all accounts possesses the qualities essential in a Supreme Court justice: a devotion to the rule of law; a commitment to judicial independence; an ability and willingness to collaborate with colleagues whose views and philosophies differ from her own," the board said. "She also appears to be a keen and careful legal thinker. A graduate of Harvard and Harvard Law School, she was an editor of the law review and went on to clerk for Justice Stephen G. Breyer, whom Mr. Biden has chosen her to replace. She put in eight years as a trial judge before ascending to the U.S. Court of Appeals for the District of Columbia in 2021. And compellingly, she would bring even more diversity to the court as the first public defender on the modern court — an especially proud legacy for a president who has proclaimed his devotion to criminal justice reform."

In The Nation, Elie Mystal celebrated the pick.

"If you are a person of color or a white progressive who understands that a principal failure of justice in this country is the disparate penalties imposed on white and Black defendants, then you should know that there are few Supreme Court candidates with a better track record on this stuff than Jackson. She was doing this work long before it was politically advantageous to do so," he wrote. "Moreover, if you are a 'libertarian' who professes to find comity with the left when it comes to nonviolent drug offenses, it will again be hard to find a judicial candidate better positioned on that issue than Judge Jackson.

"Not that I expect Jackson to receive a ton of conservative support. White conservatives will make ugly and baseless attacks on her credentials and intelligence, and throw around whatever other muck passes for legal analysis on white-wing television these days. But make no mistake, the reason conservatives will be against Jackson (beyond their racism) is her rulings against the Trump administration and in favor of democratic self-government... In Committee on the Judiciary v. McGahn, Jackson ruled against former White House counsel Don McGahn’s scheme to evade a congressional subpoena for the testimony he gave to former special counsel Robert Mueller. In Campaign for Accountability v. DOJ, Jackson ruled against another Trump administration gambit to shield documents from FOIA requests. And in Trump v. Thompson, just this past December, Jackson joined in an opinion ruling against Trump’s cockamamie attempt to use executive privilege to shield documents from the January 6 Congressional Committee, a ruling that was affirmed by the Supreme Court 8-1."

Dahlia Lithwick and Mark Joseph Stern said imagine if Jackson "got to play by Clarence Thomas' rules."

"In the coming weeks and throughout the confirmation process, the nominee will be required to present herself as a human whiteboard, serving up a lifetime devoid of political preferences, ideas, or preconceptions," they said. "Across the street, at the Supreme Court, the story is quite different. Two pieces of groundbreaking reporting—first from Jane Mayer in the New Yorker in January, then another this week from Danny Hakim and Jo Becker in the New York Times—provide spectacularly detailed investigations into the conflicts of interest presented by Clarence and Ginni Thomas’ partisan political activities and causes.

"These deep dives, which include a mountain of evidence about the ways in which the couple has worked together to mix his extreme law with her extreme politics, have largely been met with a collective public shrug," they wrote. "Maybe because everyone knew all this already, absent the names and dates and details, or maybe because there’s simply no mechanism to do anything about it. Since the justice is bound by no enforceable ethics rules, the fact that his wife actively works on cases he decides, supports amicus briefs he reads, and coordinates causes he favors is the source of sighs and 'there they go again' ennui among the nation’s court-watchers. Yet both investigations detail a five-car pileup of ethics violations from which no one should turn away."


What the right is saying.

  • The right criticizes the pick, saying she is the product of a bad process and a progressive activist.
  • Still, some say Republicans should not go scorched-earth resistance.
  • Others argue it's worth putting up a fight.

In The New York Post, Dan McLaughlin said the left made Joe Biden's decision for him once again.

"Biden in 2020 pledged to pick the first African-American woman on the court, which at one stroke excluded 97% of the candidates from the job just based on their race and gender," McLaughlin said. "Left-wing groups lobbied for Jackson because she had worked as a public defender and was seen as more sympathetic to criminal defendants. She also got attention in cases ruling against Donald Trump.

"Jackson has two Harvard degrees, served a Supreme Court clerkship for Breyer and is an experienced trial judge, but she is not a lively or persuasive legal writer or a scholar," he wrote. "Biden and Democrats don’t expect her to have a consistent theory of how to read the Constitution and laws; they just want results. Introducing Jackson, Biden talked about 'a pragmatic understanding' of a 'resilient' Constitution — code for doing whatever Democrats want instead of what the Constitution says... Jackson also has a problem in the biggest case on the court’s term next year, a challenge to anti-Asian race discrimination in admissions to Harvard in the name of 'diversity.' Jackson has served for years on Harvard’s Board of Overseers and should be expected to recuse herself from the case."

The Wall Street Journal editorial board said "the GOP shouldn’t indulge in the left’s scorched-earth tactics."

"Judge Jackson’s elevation wouldn’t change the Supreme Court’s direction in the near term, since she’d replace a fellow liberal," the board wrote. "As [Sen. Lindsey] Graham says, the public is owed hearings that are respectful, thorough and, yes, even interesting. Judge Jackson is on Harvard’s board of overseers, while the Supreme Court is poised to consider the school’s racial preferences in admissions. Some of her prominent rulings as a district judge were reversed. Another has a footnote on the first page to explain that it “uses the term ‘noncitizen’ in lieu of the term ‘alien.’

"All fair game. But Republicans should refuse to engage in the politics of personal destruction that Democrats routinely wage," it added. "Many Republicans may be frustrated that they don’t have more leverage, but elections have consequences. Mr. Biden won in 2020, and then President Trump’s claims of a stolen election in Georgia cost the GOP control of the Senate. Conservatives are paying the price again."

In American Greatness, Paul Gottfried said Republicans are "rolling over when it's payback time."

"The Republicans, being the polite party, will not summon up the ruthless determination that the Democrats did in trying to block the confirmation of Brett Kavanaugh," Gottfried wrote. "Republican sources are assuring us that this new nominee won’t change the composition of the court. She will be nothing more than a replacement for Stephen Breyer, who almost always voted with the Left on divisive judicial issues. Besides, Republican Party leaders are determined not to do anything that might alienate minority voters, for example, taking a strong stand against a female who is also a member of a racial minority.

"There are certain problems with this calculation," he concluded. "If Brown-Jackson or someone like her is the replacement for Breyer, you won’t just be trading one liberal judge for another. You’ll be exchanging the courtly, verbally restrained Breyer, who opposed Biden’s plan for court packing, with a proven political actor, who will do everything in her power to weaken the political Right. The Republicans will also be showing us what we can expect of them if they take over the Senate: more timidity in the face of an aggressive opposition."


My take.

I think it's an excellent choice.

When Amy Coney Barrett was nominated, this is what I said: "As I’ve written repeatedly, there is no doubt about Barrett’s qualifications or her decency. She is, in my mind, the most qualified person President Trump has tapped for any role of any kind in the federal government. By all accounts of everyone who has ever worked with her, regardless of their political beliefs, she is a tremendous student of the law and a good human being to boot. That’s probably why there was so little in her confirmation hearing that even approached tension: she was airtight from top to bottom, and Democrats had no moves to play."

There were good questions about the nomination process, but no doubt about the nominee.

In this case, there are no questions about the nomination process or about the nominee. Regardless of Biden's promise to nominate a Black woman to the court (which, as The Washington Post editorial board rightly pointed out, is not all that unprecedented as Republicans say), Jackson was always the most likely choice for any Democratic president. She was a finalist under Obama and had been appointed to the D.C. Circuit appellate court, which is basically the minor leagues of Supreme Courting.

Questions about her judicial experience or education are all, basically, hogwash:

There is very little reason for Republicans to pick a fight, in my opinion, though given the history of Supreme Court nominations, I'm sure they will. Jackson has ruled against Trump in a number of high profile cases that will be red meat for the base. She also upheld Biden's executive order barring evictions, a ruling that was later overturned by the Supreme Court.

I loathe the fact Jackson will have to face questions about her qualifications because of Biden's declaration that he'd pick a Black woman, which I think is a fair criticism of the outcome of making such declarations.

But this is all pretty open and shut in my eyes: She graduated from Harvard, then Harvard law, then clerked for the retiring justice (Stephen Breyer), then served as a trial judge and on the U.S. Court of Appeals for the District of Columbia Circuit. She has worked in private law and as a public defender. She has a breadth of experience. The only real criticism of her is that she adds yet another Ivy League graduate to the Supreme Court ranks, which isn't so much a criticism of her as it is of what might be an overemphasis on having a certain kind of pedigree to join the Supreme Court.

Hopefully, Jackson will be confirmed. And then, maybe Congress can focus its Supreme Court energy on fleshing out a code of ethics for all members of the Supreme Court.

Have thoughts about "my take?" You can reply to this email and write in or leave a comment if you're a subscriber.


Your questions, answered.

Q: I started following the Kyiv Independent on Twitter for updates, and they make it sound like Ukraine is having a lot of success defending themselves. How much of that is true, and how much is propaganda? How do everyday Americans learn to filter through the biases in media around this war in general?

— Sean from Texas

Tangle: It's smart to be skeptical. The Kyiv Independent is made up of some really great Ukrainian journalists and I absolutely think you can trust their reporting. I am following them for updates (I created a Twitter list of good Ukrainian sources here, if anyone is interested). However, I do think one can see that a good majority of their posts are positive updates about the resistance, which is worth noticing. They also seem to regularly share Ukrainian civilian deaths and the deaths of Russian soldiers, but have done little reporting on the damage done to the Ukrainian army.

This makes sense, given that their sources are probably Ukrainian defense ministers who don't want to share that intel. It also makes sense because Ukraine is doing its best to keep morale high, especially given the Russian disinformation campaigns that are pushing Ukrainians to surrender.

All this being said, I think it's true that Ukraine's army has so far proved to be much more resilient than people expected. I also think it's worth remembering we are still very, very early on. In 2003, U.S. soldiers took Baghdad in three weeks, which was considered a decisive and incredibly fast takeover. We are five days into this, and Russia is now enlisting the help of Belarus and still has another third of its prepared forces ready to invade, according to some reports. So yes, some of the news has been encouraging in the sense Ukraine is holding strong and defying reports they'd fall in a matter of days. But it's still very, very early on and Ukraine is still heavily outmatched militarily.

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 the weekend, a U.N.-sponsored assessment of climate change was released that said global warming is reshaping the world more rapidly and severely than previously known. Perhaps most importantly, the report warns that food insecurity is becoming a faster and more dangerous humanitarian crisis. It classified nearly half of the world's population as being "highly vulnerable" to impacts from climate change and that irreversible losses are occurring among some warm water coral reefs, coastal wetlands and rainforests, as well as in melting arctic permafrost and glaciers. Still, the report says if society takes steps to limit warming, it could prevent much — though not all — of the worst impacts expected. Axios has the story.


Numbers.

  • 70%. The percentage of Ukrainians who believe Ukraine will win the war, according to a new survey.
  • 91%. The percentage of Ukrainians who support President Zelensky in the conflict, according to a new survey.
  • 7 points. The advantage Republicans have over Democrats in a new midterm poll from ABC News and Washington Post of registered voters.
  • Three. The number of Republicans who voted to confirm Ketanji Brown Jackson to the U.S. appeals court.
  • 233. The number of years the Supreme Court has existed.

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Have a nice day.

The Ukrainian border guards who posted a video that went viral in which they told a Russian warship to "go f–k yourself" are still alive after initial reports they had been killed. The 13 guards were on Snake Island in the Black Sea when they were ordered to surrender by two Russian warships. Video of the border guards refusing, and cursing out the ship's captains, went viral online. But those reports included a presumption that the guards had died. On Monday, the Ukrainian Navy reported that the guards were still alive and being held captive by Russian forces. “We are very happy to learn that our brothers are alive and well,” the Navy said in a Facebook post. It's an encouraging update, and a reminder to be careful with what you find online. The New York Post has the story.


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