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What Republicans likely have in store for Ketanji Brown Jackson

You might think that Judge Jackson’s confirmation hearings should be a slam dunk, but Republicans won’t move on without a fight. 


Tomorrow, as the invasion of Ukraine enters its fourth week, the Senate Judiciary committee will convene for Ketanji Brown Jackson’s confirmation hearings. You might think they should be a largely civil exercise of the Senate’s advise and consent power. Or you might imagine, against the backdrop of war and humanitarian crisis, that it should be almost a non-event, but for the transformative visual of a Black woman ascending to the Supreme Court. After all:

The RNC’s bullet points about Judge Jackson illustrate how little they have to work with. For example, they portray her as a “Democrat partisan” because she volunteered as a poll watcher for the Obama campaign and donated $950 to his campaign . . . fourteen years ago. They also critique her association with groups that “raise questions about her judgment.” But on closer look, those groups are ones most Americans would be proud to join. Jackson is an elected member of the Harvard Board of Overseers (what Harvard calls its Board of Trustees) and previously served as a director of the Harvard Alumni Association “when the organization planned and later cancelled a trip to North Korea where alumni were told to show ‘respect’ for Kim Jong-II.” She also belongs to the Cosmos Club, a private, mixed-gender institution that the RNC dismisses as “a club of the Washington elite.” What they RNC doesn’t say is that the club’s members have included “three Presidents, two Vice Presidents, a dozen Supreme Court justices, 36 Nobel Prize winners, 61 Pulitzer Prize winners, and 55 recipients of the Presidential Medal of Freedom,” many of them famous Republicans. (For example, those three presidents who belonged to the Cosmos? Two — Herbert Hoover and William Howard Taft — were Republicans.)

Still, as The New York Times reported today, the GOP is preparing sharper, more potent lines of attack. One began last week with Senator Josh Hawley’s tweet thread about Judge Jackson’s purported leniency in sentencing child porn offenders, an accusation further detailed in Republican background documents obtained by Politico.

The White House quickly responded that Hawley, who, in 2017, refused to say he would not vote for then-Alabama Senate candidate and accused sex offender Roy Moore, was hardly positioned to level that critique. Judge Jackson also hardly stands alone among D.C. federal judges in sentencing child pornography defendants to well-below-guidelines ranges; indeed, several Trump-nominated judges in that district have done exactly that.

Another line of attack was previewed by those same RNC talking points, which announce in all caps, “JACKSON HAS A RECORD THAT INCLUDES DEFENDING TERRORISTS.” Specifically, the RNC claims:

• Jackson worked as a lawyer for several terrorists detained at Guantánamo Bay, including a Taliban intelligence officer who was likely a leader of a terrorist cell.

o Jackson’s advocacy for these terrorists was “zealous,” going beyond just giving them a competent defense.

o Despite Jackson’s claim that she did not get to choose her clients as a public defender, she continued to advocate for Guantanamo terrorists when she went into private practice.

Never mind, as Ben Wittes wrote today, that “the American tradition of zealous representation of unpopular clients is at least as old as John Adams’s representation of the British soldiers charged in the Boston massacre.” Moreover, the importance of a zealous criminal defense has never been a partisan concept. In fact, in defending Judge Jackson’s work on Guantanamo-related matters, several senior Obama Justice and NSC aides quoted none other than Senator Lindsey Graham on the role of criminal defense lawyers in upholding the rule of law. When, in 2010, a number of President Obama’s Justice Department appointees — dubbed the “al Qaeda 7” — similarly were accused of siding with terrorists for representing Guantanamo detainees, Graham issued this statement in their defense:

I’ve been a military lawyer for almost 30 years. I represented people as a defense attorney in the military that were charged with some pretty horrific acts, and I gave them my all . . . This system of justice that we’re so proud of in America requires the unpopular to have an advocate and every time a defense lawyer fights to make the government do their job, that defense lawyer has made us all safer.

Look for that quote to resurface when Senators Hawley, Lee, Cotton and others, potentially including Graham himself, try to convince America that Biden’s Supreme Court nominee has too much empathy for criminals—or worse yet, loves terrorists. After all, committee Republicans are eager to avenge Democrats’ treatment of Justice Kavanaugh, and while privately conceding that Judge Jackson is accomplished, engaging, and even a fan of Scalia-style judicial restraint, they won’t go down without a fight.

Lisa Rubin is a former litigator and the off-air legal analyst for the Rachel Maddow Show.