Supreme Court confirmations: a deep dive

Editors' Note: Our publication today wears reversed rules in memory of Eric Boehlert, who died suddenly this week at 57, after a long and brilliant career of press criticism. With wit, courage, judgment, and meticulous research, he trenchantly criticized our most self-important media outlets for their shortcomings, notably their devotion to propagating a false equivalence between America's center-right political party (the Democratic Party) and the fascist-revival subversives doing business as another major political party.  We dedicate ourselves to continuing his work as best we can.

By Scott V. Sandford
Law and Justice Correspondent

We got the happy ending to the nomination of Ketanji Brown Jackson to the Supreme Court: she was confirmed 53-47 notwithstanding the antics of white Republican racists.  And pretty much on schedule, per the McConnell Rule.

Classless to the end, two of the loudest and most louche of the breed – Rand Paul and Lindsay Graham – were too shy to step onto the Senate floor to cast their votes in the light of day.  Instead, they voted no from the privacy of the Senate cloakroom.  The reason for their sudden stage fright (after years of preening in front of every TV camera on Capitol Hill)?  Wait for it: they supposedly forgot their ties, which are required for male Senators.  There were apparently none to be had anywhere in the U.S. Capitol complex, where thousands of men every day run around wearing ties.  Then guess what happened:

Lindsey then put his tie back on to do Fox. Disgusting. https://t.co/X473w86EMU

— Norman Ornstein (@NormOrnstein) April 8, 2022

This performative contempt for a superbly qualified Black woman was the final squirrel dropping in the s**t sundae the Republicans whipped up in honor of Judge Jackson.  We don’t need to recount the many outrages and unforgivable insults offered up by Republican stooges like Cancun Ted, Fist of Fury Josh, and the gal with the “post-orgy” hair, Marsha Blackburn.   We’ll let Michelle Cottle do it for us:

Top showboaters this time around included Ted Cruz, Tom Cotton, Marsha Blackburn, Josh Hawley and Lindsey Graham — a master of the self-righteous hissy fit. These folks really went the extra mile to turn the proceedings into a circus. So much performative outrage. So little interest in reality.

Surprising no one, Mr. Cruz was the most embarrassing of the lot. In a convoluted effort to paint Judge Jackson as a radical wokester...the senator whipped out a copy of the picture book “Antiracist Baby” and started tossing off bizarre, misleading questions, “Do you agree with this book that is being taught with kids that babies are racist?” (The book doesn’t teach that.)

We’re not always Ms. Cottle’s biggest fans, but when she hits it, we don’t have to.

Among the most ludicrous performances: when a bunch of Republican Senators, most of whom lacked any first, uh, hand experience in the question of lady parts, tried to grill Judge Jackson on what constitutes a woman. They got a lot of mileage over that bit, except the minute the confirmation was over they got a taste of their own medicine:

From "Never Have I Ever" to Justice

A question about defining “woman” – one that baffled Republicans last month during Judge Ketanji Brown Jackson’s confirmation hearings and was also labelled by Senator Marsha Blackburn as “fundamental” to being able to answer – is proving to be a stumbling block for GOP lawmakers to provide a succinct answer to.

One in particular, Sen Josh Hawley...seemed...genuinely confused about human anatomy works. In a series of hallway interviews, HuffPost asked Republicans who sat on the Judiciary Committee [to]...define woman....

...Mr Hawley boldly began by explaining that womanhood is inherently tied to a person’s ability to give birth, saying: “Someone who can give birth to a child, a mother, is a woman,” Mr Hawley said, before adding “someone who has a uterus is a woman. It doesn’t seem that complicated to me.”

The reporter then ...ask[ed] if a woman has had her uterus removed, a procedure that the CDC estimates 20 million people in the country have done, then would that disqualify them from being included in Mr Hawley’s definition?

Mr Hawley responded to the question by asking another question: “Yeah. Well, I don’t know, would they?” When pressed further by the reporter about whether or not a woman would still be defined as such if she, for instance, lost her reproductive organs to cancer, he again answered with a question: “I mean, a woman has a vagina, right?”

You tell us, Fist of Fury.  By the way, Ladies’ Man Josh may be interested to know that many trans women (whom he is eager to exclude from the definition of woman) have vaginas.  Isn’t that the point of gender-affirming bottom surgery?

But when we said we wanted to take a deep dive into the confirmation process, that’s not where we wanted to go.  What we have to do is take issue with the effort of Republican Both-Siders to frame the problem.  Here’s Sen. Lisa Murkowski, who had no problem putting a sex offender on the Supreme Court four years ago, saying her vote “also rests on my rejection of the corrosive politicization of the review process for Supreme Court nominees, which on both sides of the aisle is growing worse and more detached from reality by the year.”  

Republicans accuse a superbly qualified judge with an exceptional and spotless record of supporting pedophilia?  Democrats listen to a victim of a sex crime at the hands of a hack perjuring nominee and want an investigation?  Both Sides!

But the problem runs deeper than equating disgusting smears with inquiring into evidence of a nominee’s attempted rape.

It’s the notion that somehow in our glorious past, confirmation hearings were bipartisan kumbayah sessions in which the only issue was the nominee’s “qualifications” by which Republicans meant graduating from Harvard or Yale Law School, unless it was a month before the election in which case Notre Dame would do just fine.

Or Ruth Marcus mythologized it:

Time was (starting with Robert H. Bork), the Senate debated whether a nominee was in or outside the judicial mainstream. That assessment was in the eye of the beholder, of course, but at least it was a nod at deliberation.

As a reminder, that’s how we got Nino Scalia and Bill Rehnquist, both of whom voted to stop counting ballots in 2000 and install George W. Bush as President.  And that turned out great!

The nomination and confirmation of a Supreme Court Justice, a lifetime appointment whose future decisions will be forever out of the control of the democratic branches, has to be a political act.  All this crap about how Congress should only review the nominee's “qualifications” (by which Republicans most certainly do not mean their propensity for committing sex crimes) is an abdication of their responsibility.

Bork, who did well on his law school exams, was “qualified,” but no one who thinks that the Civil Rights Act is unconstitutional has any place on the Supreme Court.  And it's the job of the Senate to make sure the Supreme Court doesn't try to void the Civil Rights Act.  (Spoiler alert: it might!)

Sometimes a nominee comes along who presents both repellent legal and policy views and disgusting personal conduct that should disqualify him from federal office regardless of the political views of the Senate.  Today we call such a nominee Justice Brett “Watch It Grow!” Kavanaugh.

Even if he had not been a repeat sexual criminal and perjurer, his terrible views on abortion rights and executive power were ample grounds to disqualify him.

Sure Amy Coney Barrett was qualified...

I hear you saying but what about Ruth Bader Ginsburg?  Weren't Republicans who wanted to bring back the days of back alley abortions right to oppose her?  Well, they were right to take into account their policy preferences.  However, those preferences are horrible and wrong.  Opposing Ginsburg's nomination was not some perversion of the role of the Senate.  It was just plain immoral.

Does this mean that a President of one party will never be able to fill a Supreme Court vacancy when the Senate is controlled by the other party?  It might.  But guess what: if Moscow Mitch McConnell and his fellow seditionists get a majority next year, they'll block any nominee no matter what.  They're not interested in pious lectures about non-partisanship.  They're interested in packing the Court, or, more accurately, continuing to pack the Court.

And if in the future there is a horrible Republican President and a Democratic Senate, that Senate should block any nominee who does not reflect the political judgment of the Democratic majority, even if they can keep it in their pants.  I'm sure there are some Republicans out there who do not regard the Supreme Court as a vehicle to enact the partisan Republican agenda.  Gerald Ford found one: John Paul Stevens. 

Where does this leave us?  It leaves us where we have been for the past 50 years: if you care about the issues likely to come before the Supreme Court, then you need to vote for every Democrat for President and for Senate, whether they give you a thrill deep inside your soul or not.  

If you want to know who to thank for the imminent loss of the right to legal abortion and a whole bunch of other good stuff, it was anyone who voted for Ralph Nader and Jill Stein. 

Here's your coat hanger; take a bow.