The Wrong Way to Choose a Supreme Court Justice

For three days, Americans watched the Senate Judiciary Committee hold what were called confirmation hearings for Supreme Court nominee Judge Ketanji Brown Jackson.

The hearings barely lived up to the name.

There was some limited discussion about judicial philosophy, constitutional law, and other legal matters—some of which had relevancy to becoming a supreme court justice— but for the most part, these were generated for the purpose of trying to trap the nominee, to expose Jackson, or to denigrate her for not being the legal genius that many folks claim her to be.

They were three days of in-your-face exchanges, with Republicans using racial tropes or slurs as they worked tenaciously and relentlessly to elicit negative response, and fit Jackson into a stereotype of an angry and stubborn black woman.

To their collective chagrin, it didn’t work.

But it has raised serious questions about the hearing process itself.

The personal assaults on KBJ went well beyond the partisan-ideological-philosophical divide between most of the Democrats and most of the Republicans.

What we witnessed was an African American woman—the first to be nominated for a seat on America’s highest court—being treated by the Republican committee members as though they were prosecuting a criminal defendant on trial for being, among other things, antiracist, a child pornographer’s best friend, and a critical race theory activist.

The Democratic judiciary members took on the supportive roles of cheerleaders for a nominee who was eminently qualified for the post: a Harvard Law School graduate who served on the Harvard Law Review, and held three law clerkships including with Associate Justice Stephen Breyer (whom she has been named to replace); a federal public defender,  vice-chair of the U.S. Sentencing Commission, and an appellate judge.

The Republican judiciary committee members, led by Senators Lindsey Graham, Ted Cruz, Marsha Blackburn, Josh Hawley, Tom Cotton, John Kennedy, Mike Lee, and John Cornyn, boiled this record down to being “soft on crime.”

It is interesting to note that those Republican judiciary members who were doing their upmost to inappropriately prosecute nominee Judge Jackson for flouting criminal norms had all ignored the criminal behavior of former President Donald Trump, when they voted to acquit him in impeachment hearings for extorting Ukrainian President Zelenskyy, and the second time for inciting a violent assault on the U.S. Capitol.

The question of being “hard” or “soft” on crime should not be an issue that defines the qualifications of a Supreme Court Justice. Judge Jackson, for the record, made clear that her “methodology” amounted to paying attention to the facts of the case, as any judge should.

But the issue really illustrates the narrow scope of our approach to doing justice. For more than 50 years, both the Democrats and Republicans have supported punitive measures except when it comes to dealing with white collar criminals.

Reflecting on the highly politicized judicial hearings from this week and the very confirmation process itself, Article II, section 2 of the U.S. Constitution provides, that the president:

…shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for.

Historically, most presidential nominations across the board have been routinely confirmed. With respect to the nomination of persons to become sitting justices of the SCOTUS, there have been a small yet highly visible number of nominees that have failed to receive action or that have been outright rejected.

Gregg Barak

Within the past decade, however, the appointments to the U.S. Supreme Court have increasingly been voted up or down according to membership in one of the two dominant political parties, pretty much invalidating the neutrality, objectivity, and legitimacy of any kind of bipartisan process of Advice and Consent.

Is it time to amend Article II, section 2 of the U.S. Constitution and substitute some other “nonpolitical” form of confirming presidential nominations to SCOTUS?

Perhaps we can consider  something like the peer-review process used by the Standing Committee on the Federal Judiciary to evaluate the professional qualifications of Supreme Court nominees?

Gregg Barak, Ph.D., is an emeritus Professor of Criminology and Criminal Justice at Eastern Michigan University, co-founder and North American Editor of the Journal of White Collar and Corporate Crime, and author of the forthcoming Criminology on Trump (May 17, 2022).