Yesterday, Judge Ketanji Brown Jackson was confirmed by the Senate, in a 53-47 vote, to take over for Justice Stephen Breyer when he retires this summer.
It was a rare and welcome show of bipartisanship. Republican centrists Sens. Susan Collins, Lisa Murkowski and Mitt Romney voted with all 50 Democrats. Fellow Republicans continued to smear Judge Jackson’s reputation up until the very last second, continuing to claim, without factual basis, that she was soft on crime and some kind of radical leftist.
With the last several Supreme Court nominees leaning so far to the right, anything close to center looks like the far left.
Of West Virginia’s senators, Sen. Joe Manchin voted in favor of confirming Jackson. Sen. Shelley Moore Capito voted against her.
Capito’s no vote irritates us not because it was a “no” — Capito is a reliable partisan voter, and we would have been shocked to see her break ranks — but because Capito wasted Jackson’s time by insisting on a personal interview.
Capito met with Jackson in mid-March and by the end of March, announced she wouldn’t support the then-potential first Black woman on the Supreme Court. In her public statement listing her reasons, Capito pointed to “Judge Jackson’s lack of a judicial philosophy” and her “support” for the Court to “ ‘discover’ unenumerated rights that go beyond the original intent of the Constitution.”
Jackson irritated conservatives when she refused to accept any label on what kind of justice she would be: an originalist, a textualist, an activist or a beer drinker. Judge Jackson instead explained that she has a methodology that allows her to approach each case on its own merits. As she said, “it is appropriate to look at the original intent, original public meaning of the words,” but she comes to each case with a neutral stance and considers the facts and the law, including the Constitution, statutes and relevant precedents.
As for “discovering unenumerated rights” … Does Capito not remember that in the original text of the Constitution slavery was enshrined law, and women had virtually no rights? If Congress and the Supreme Court hadn’t found “unenumerated” rights in the nation’s founding text, no one except white men would qualify for basic human rights.
The day after Capito announced she wouldn’t confirm Jackson (surprising no one), Attorney General Patrick Morrisey sent out an unnecessary press release urging our senators to just say no to Jackson (also surprising no one).
Like Capito’s vote is irritating not for its nature, but for Capito’s disrespect of Judge Jackson’s time, Morrisey’s open letter is irritating not for its smears on Judge Jackson’s character and qualifications, but for its complete lack of originality. It’s little more than a regurgitation of what more powerful players in the party have already said.
The release lambasted her refusal to answer certain questions (like Amy Coney Barrett) because she is “not a biologist” or “not a policymaker” and for not giving the maximum penalties allowed by law in every case.
Gasp! A judge who knows to stay in her lane and to make informed decisions based on expert testimony? A judge who rules on the merits of an individual case instead of using the harshest penalties in a one-size-fits-all approach? The horrors!
It’s been so long since Republicans have seen a Supreme Court nominee whose politics weren’t a key part of their judicial philosophy (or one not dogged by scandal), they don’t even recognize political neutrality — something the Supreme Court once prided itself on.