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The Republican Plan To Draw Blood Over Biden’s SCOTUS Nomination

GOP lawmakers press Judge Ketanji Brown Jackson on Democratic efforts to pack Supreme Court, block Republican judicial appointments

Sen. Josh Hawley (R., Mo.) at Judge Ketanji Brown Jackson's Supreme Court hearing / Getty Images
• March 21, 2022 6:50 pm

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Senate Republicans indicated they will press Judge Ketanji Brown Jackson about Democratic efforts to pack the Supreme Court and block Republican judicial appointments during her confirmation hearings for the Supreme Court this week.

GOP members of the Senate Judiciary Committee on Monday denounced Democratic conduct during Justice Brett Kavanaugh's bitter confirmation and harkened back to prior Republican nominees who faced stiff opposition from Democrats. They also keyed in on Senate Majority Leader Chuck Schumer (D., N.Y.) and dark money groups that back both Jackson and efforts to add seats to the Supreme Court.

It's likely Jackson will be confirmed, but Republicans can still extract a political cost by highlighting hotly contested judicial confirmations from years past, particularly those involving minority conservative nominees. Sen. Dick Durbin (D., Ill.), who chairs the Judiciary Committee, sidestepped the issues when asked about them during a post-hearing press conference.

"I don't want to relive that history," Durbin said. "I think we're pushing forward with an eye to the future."

Almost every Republican on the committee harkened back to the Kavanaugh confirmation and vowed to run a more credible opposition. Sen. Ted Cruz (R., Texas) said the Kavanaugh hearing was "one of the lowest moments in the history of this committee."

"No one is going to ask you with mock severity, ‘Do you like beer?'" Cruz told Jackson.

Republican lawmakers invoked Schumer's conduct respecting the Court several times. They noted that the majority spoke at a rally outside the Supreme Court during oral arguments in an abortion case in 2020. Schumer, singling out Kavanaugh and Justice Neil Gorsuch by name, warned they would "pay the price" if they restricted abortion access.

"The chief justice rightly condemned these words," Sen. Tom Cotton (R., Ark.) said at Monday's hearing. "I hope any nominee to the Court would be comfortable condemning these words from Senator Schumer."

Also common were references to Judge Janice Rogers Brown and Miguel Estrada, two minority judicial nominees Senate Democrats bitterly opposed. Almost two decades have passed since Brown and Estrada were before the Senate. But for Republicans, the outrage is still fresh because of what they view as the outrageous hypocrisy of Democratic lawmakers on minority candidates.

Brown is a black judge from California whom former president George W. Bush nominated for the U.S. Court of Appeals for the D.C. Circuit. Senate Democrats successfully stalled her confirmation for two years. Then-senator Joe Biden indicated in 2005 that Democrats would filibuster her if she were selected to succeed retiring justice Sandra Day O'Connor on the Supreme Court.

Estrada, an immigrant from Honduras, was also widely perceived as a frontrunner for the Supreme Court when Bush tapped him for the D.C. Circuit in 2001. Democrats similarly blocked his nomination until he withdrew in 2003. A leaked memo to Durbin from his staff warned that Estrada was a dangerous nominee because he "has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment."

Estrada had a friend and ally in Justice Elena Kagan. During an exchange at her confirmation hearing with Sen. Lindsay Graham (R., S.C.), Kagan called Estrada "a great lawyer and a great human being" who was qualified for the appeals court and the Supreme Court.

Republicans appear to be angling for a similar moment.