The Senate Judiciary Committee on Monday voted along party lines to advance the confirmation of Judge Ketanji Brown Jackson to the Senate floor after weeks of tough scrutiny.
The vote came later than expected for Democrats after Sen. Alex Padilla (D-Calif.) was held up by a delayed flight, forcing Democrats to push the vote later into the afternoon to guarantee its success in the equally-divided Judiciary Committee.
All 11 Republicans on the committee voted against the nomination and all 11 Democrats voted in favor of the nominee, depriving Democrats of a majority vote for Jackson.
Still, due to rules worked out at the beginning of the 117th Congress by Senate leadership, Jackson’s confirmation was able to pass through the committee without achieving a majority.
Jackson, who was nominated by President Joe Biden to replace outgoing Justice Stephen Breyer on the Supreme Court, has been accused of a “soft-on-crime” attitude by Republicans who have cited her fairly lenient sentencing decisions for those in possession of child porn, as well as her apparent lack of a unified judicial philosophy.
On Monday, those conflicts reopened as Republicans made a final attempt to derail Jackson’s nomination.
Judiciary Chairman Dick Durbin (D-Ill.) has called these GOP criticisms “demagogic,” but Republicans have emphasized that Jackson’s sentencing decisions fell well below federal sentencing guidelines in every case that she was not bound by mandatory minimum sentencing laws.
“It was unfortunate that some moments in the hearings came to that,” Durbin said on Monday.
“This action today is nothing less than making history,” Durbin added. “I’m proud to be a part of it.”
“Judge Jackson is poised now to make American history,” Sen. Jon Ossoff (D-Ga.) agreed later in the hearing, expressing a common sentiment among Democrats during the final hearing.
In his opening statement, Ranking Member Chuck Grassley (R-Iowa) accused Democrats of hypocrisy over the issue of a nominee’s judicial philosophy.
During the week of hearings, Republicans pushed Jackson to elaborate on her judicial philosophy, but her answers—which described a “methodology” that would work on a case-by-case basis—left Republicans dissatisfied and even left some Democrats confused.
Democrats responded to the attacks by saying that judicial philosophy does not matter.
During his statement on Monday, Grassley cited past statements by Senate Majority Leader Chuck Schumer (D-N.Y.) in which he argued for more rather than less emphasis on judicial philosophy, which Grassley called “hypocritical.”
Arguing for the importance of judicial philosophy, Grassley said it is necessary for a Supreme Court justice to have “an understanding of the fundamental principles of our constitution.”
Jackson, Grassley noted in reference to one exchange from her hearings, “does not have a position on whether individuals possess natural rights.”
Later in the Monday hearing, Sen. Mike Lee (R-Utah) also expressed concerns over Jackson’s lack of a clear judicial philosophy.
“Judicial philosophy matters because there are a lot of consequences to having a bad judicial philosophy,” Lee said, noting that judges without a judicial philosophy are more likely to be driven by their own personal politics in deciding the outcome of a case.
At another point in the hearing, Senate president pro tempore Patrick Leahy (D-Vt.) also praised Jackson and decried GOP criticisms of the nominee.
Jackson “put on a master class in what it means to be an independent, fair-minded judge,” Leahy said, despite “disrespectful behavior” from Judiciary Republicans.
Leahy called for Republicans and Democrats to end “tired tribalism” and unite behind Jackson, who Leahy called one of “the most well-qualified nominees” that he had ever considered in his decades in the Judiciary committee.
Sen. Lindsey Graham (R-S.C.) responded to Leahy by citing the treatment of the past three GOP nominees—Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—who advanced through the then GOP-held committee on a party-line basis, and noted that in such an environment it would be “more odd” if a single Republican member supported Jackson’s confirmation.
Graham also added that Jackson, in her role as a judge and on the U.S. Sentencing Commission, “had a chance to deter the crime [of child pornography]” by imposing tougher sentences “and she chose not to.”
During another part of the hearing, Sen. Marsha Blackburn (R-Tenn.) recounted a controversial exchange between herself and Jackson. In the exchange, Blackburn asked Jackson to define the word “woman” but she refused, saying she was “not a biologist.”
This exchange, Blackburn ruled, “speaks volumes” and “shows that [Jackson] is beholden to the radical left.”
On March 28, Republicans in the Senate Judiciary Committee placed a one-week hold on the confirmation vote in the committee, citing gaps in Jackson’s record and incomplete records from the White House.
“Democrats have taken to repeatedly mentioning that Judge Jackson has been confirmed by the Senate three times—two of which were non-controversial—using votes for positions like the U.S. Sentencing Commission,” Grassley said when requesting the hold last Monday.
He warned against the Democrats’ efforts to compare the two, saying it “is going to make it much harder to confirm anyone to those positions. It encourages senators to apply the same standard used for evaluating Supreme Court nominations to every single position.”
In addition, Grassley said, Jackson’s record is “unfortunately … incomplete.”
“That’s because information has been withheld,” he said, citing a laundry list of nonpublic documents from Jackson’s time in the U.S. Sentencing Commission, 48,000 pages of documents held back by the Obama White House, and many others.
“It appears the White House wants to hide [Jackson’s] record.
“So with so much information withheld, we’ve examined her record and there were a lot of questions about Judge Jackson’s judicial philosophy.”
With her confirmation pushed through the Senate, Republicans have few options left to stop her confirmation.
Two key swing voters, Sens. Joe Manchin (D-W. Va.) and Susan Collins (R-Maine), have come out in favor of Jackson’s confirmation.
While Sen. Kyrsten Sinema (D-Ariz.), a major swing voter and one of the only Democrats who has not publicly committed to voting for Jackson, may choose to oppose her confirmation, Collins’ vote would override Sinema’s vote.
In addition, several other Republicans—Sens. Mitt Romney (R-Utah), Lisa Murkowski (R-Alaska), Roy Blunt (R-Mo.), among others—have indicated that they are at least open to considering whether to support Jackson.