The confirmation hearing for Supreme Court nominee Ketanji Brown Jackson is underway. If confirmed by the U.S. Senate, the federal appeals court judge would be the first Black woman on the nation’s highest court. The nomination hearing is the fourth in the past five years, starting with Neil Gorsuch in 2017, Brett Kavanaugh in 2018 and Amy Coney Barrett in 2020.
For a preview of Jackson’s hearing, WAMC's Jim Levulis spoke with Paul Collins, a professor of legal studies and political science at the University of Massachusetts Amherst and author of multiple books on the Supreme Court.
Collins: Yeah, I think it's very likely that Judge Jackson will also be confirmed to the high court. Where I think we'll see some differences between the last three hearings and Judge Jackson will involve some subtle but perhaps noticeable incidents of racial and gender bias that nominees of color and female nominees have faced in past confirmation hearings.
Levulis: And how do you think that'll manifest itself?
Collins: So we've looked at every question and every answer given at every confirmation hearing throughout American history. And what we found is that compared to white male nominees, female nominees and nominees of color, they tend to have their competence questioned more, they tend to be interrupted more, they're asked more questions and areas that they're stereotyped to have strengthens in. And so for female nominees, these are things like abortion rights and gender discrimination. For nominees of color, these are things like racial discrimination. And they're also described by senators, particularly opposite party senators, in less standout ways than white male nominees. So you see fewer uses of words like “exceptional, outstanding and superb.” And as I said, this all tends to be exacerbated if the questioning senator doesn't share the partisan affiliation of the nominee. So in other words, we kind of expect Republican senators to engage in a lot of these forms of implicit and very subtle bias.
Levulis: And now Judge Jackson was confirmed by the Senate to the US Court of Appeals for the District of Columbia less than a year ago in 53 to 44 vote. Do you think that benefits her in the sense that this body has already deemed her qualified for a high level judicial position?
Collins: I think it does, in some ways. Certainly, we'll see Democratic members of the Judiciary Committee highlight the fact that she got some Republican support as a Court of Appeals judge, and also that several Republican judges have come out to support her, you know, several individuals affiliated with the police. But I think the Republican response to that will be that an appointment to the Supreme Court, it's really at a whole different level. And so even the few Republican senators who supported her Court of Appeals nomination will probably indicate that they're going to start from scratch on this one.
Levulis: You talked about Judge Jackson's background, obviously she would be the first Black woman on the nation's highest court. Also of note, her supporters have noted that she's been a public defender. How do you think that experience will come to play in these hearings? You know, Republicans have said public defenders, other Biden nominees to federal court positions, called them weak on crime, that sort of thing.
Collins: It's certainly going to come up, and it's probably going to be one of the themes of Republican attacks on Judge Jackson. And so to provide some perspective, it's pretty rare for presidents to nominate former public defenders to federal judgeships. President Biden has kind of broken this trend. And part of the reason why presidents have been reluctant to do this in the past is because it opens up a line of attack on a nomination to say, you know, why did you represent these clients? Why did you take these positions that presidents have tried to avoid? Now, having a public defender on the bench is important because they bring unique perspectives based on those roles. But we're going to see over and over again, Republicans on the Judiciary Committee question Judge Jackson's past work as a public defender. I think this is going to play out a lot with respect to her representation of Guantanamo Bay detainees, for example.
Levulis: Given the court’s current term, what do you expect Judge Jackson will say about abortion rights or Roe v. Wade?
Collins: Almost nothing. So there are certain areas where Supreme Court nominees tend to not take positions. Abortion rights is one of those areas. So it's very unlikely that Judge Jackson will say much more than Roe vs. Wade is a precedent of the Supreme Court. Now not all nominees in the past have dodged sensitive questions like that. For example, Ruth Bader Ginsburg indicated that she supported a woman's right to an abortion. But nominees since Justice Ginsburg have really avoided answering almost any type of question regarding abortion rights.
Levulis: So are there any rulings or decisions that Judge Jackson has been a part of that you think will be brought up by senators, either side of the aisle?
Collins: I think we'll definitely see a lot of discussion of the decision she made with respect to the Don McGahn case and the Trump administration, trying to claim privilege with respect to some communications, and perhaps the most notable statement she made in her opinion in that case, was that the president is not a king. This, of course, isn't a controversial statement. But it does provide a window, particularly for Republican senators to open up a line of questioning about how she views executive privilege and presidential power, and things of that sort that that they're likely to be quite interested in.
Levulis: What about the timing of this nomination and the hearings? Do you think that will be brought up? Or has that ship sailed, given some of the quick turnarounds for some of the other recent nomination hearings?
Collins: I think it will be brought up, but I don't think it'll win Republican senators a lot of points because it's not that unusual a timeline. In fact, many progressives hoped President Biden would have made a nomination sooner than he did. But I do think we will see these process-based attacks. Republicans in particular are going to try to tie Judge Jackson's selection to left-wing dark money organizations. We're also going to see a lot of discussion about how much the Biden administration weighed race and gender with regard to this appointment, because of course President Biden pledged to appoint the country's first Black woman to the Supreme Court.
Levulis: We mentioned Judge Jackson's previous mark of 53-44 confirmation for the Court of Appeals position. Do you have an estimate of what the number might be this time around?
Collins: I'll go ahead and make a prediction that it's going to be 52 to 48. I actually don't think that Democrats are going to need Vice President Harris to break the tie. I think, two probably not much more than two Republicans will get on board because it's going to be pretty hard to oppose the nation's first Black woman to the Supreme Court who's eminently qualified for the position.
Levulis: And who do you think those two Republicans will be?
Collins: I think they'll probably be [Maine Senator Susan] Collins and [Alaska Senator Lisa] Murkowski.
