GOP Senators Should Take A Pass On SCOTUS Nominee

There are a lot of similarities between war and politics.  That is why we so often use the same terminology.  A good general knows the importance of looking at each battle as a unique situation.  You have to pick the battles based on a larger strategic view.

That is exactly the situation the GOP finds itself with the hearings over President Biden’s pick to fill the vacancy on the Supreme Court created by the retirement of Justice Stephen Breyer.  Biden’s pick was Federal Appellate Judge Ketanji Brown Jackson.  She would not be my pick – or the Republicans’ pick.  But we do not have a voice in that part of the process.  Elections have consequences – even controversial elections.

A couple of Republicans sitting on the Judiciary Committee have gone on a full-bore attack on this appointment.  I think that is a mistake.  The most notable is Missouri Senator Josh Hawley.  He has created the most controversy by going after Jackson’s defense of GITMO prisoners and what he claims to be her “going easy” on pedophile sex offenders.

That may play well with the hardliners on the right but does not enhance the image of the Republican Party in terms of the all-important voters in the center.  It is counterproductive to gaining the more conservative Democrat voters.  It appeals only to votes the GOP already has.

At this juncture, I would be more concerned about the general GOP image going into the midterm elections in just seven months than creating a bruhaha in a situation that cannot be won from the more conservative perspective.  

The problem with the two issues raised by Hawley is that Jackson has a credible response.

In the cast of the GITMO prisoners, she was required to provide legal defense in her role as a federal public defender.  In addition, most voters believe in the core of American justices that every defendant has a right to representation – even the most hideous of offenders.

In terms of the pedophilia cases, Jackson was constrained – as are all judges – to sentence in accordance with the limitations set by Congress and refined by the Commission on Sentencing.  Jackson is not the toughest judge on pedophiles, but not the most lenient.  There is nothing in both the GITMO and pedophilia cases that come close to disqualification.

Whether I personally approve of her judgment is immaterial.  She is not too far out of the center on those cases that the alarms need to be set off.  I am more concerned about her decisions in more political cases.  It is useful to have all her cases critiqued and brought forward for public review by the Republicans – but they are not going to make any difference in the outcome.

And that is a major point.  Jackson is virtually certain to be confirmed – and I believe there will be a number of Republican senators voting in the affirmative.  Maybe more than is expected by the political pundits.  Jackson’s nomination has already received support from Republican-associated conservative groups.  Not because they totally approve of her judicial temperament, but because of the tradition of supporting presidential pick unless there are overwhelming issues to disqualify the candidate.  So far, Jackson does not have such issues.  

In fact, objectively, she has a strong resume consistent with the job.  We have to keep in mind that Jackson has held three previous judicial posts that required Senate confirmation – and she was confirmed, including with GOP support.

Taking the opposition to Jackson to the mat does not make sense in terms of the balance of the Court.  Thanks to President Trump and then-Senate Majority Leader Mitch McConnell, we have seen three generally conservative justices appointed to the Supreme Court.  Jackson would be replacing one of the few progressive members, Justice Stephen Breyer.  The balance of the Court is not in question.

Confirming Jackson in a bipartisan vote – without needless acrimonious accusations and debate – would actually enhance the GOP.  It would give the American voters further confidence in entrusting Republicans with the public office up and down the ballot. 

There is nothing wrong or counterproductive with asking a few tough questions.  But to carry on with hair-on-fire rhetoric – mostly for the purpose of creating content for campaign advertisements – is counterproductive.  It is simply throwing everything into a battle that cannot be won.  It services no broader strategic purpose.   

The less controversy over this all-but-certain confirmation, the less meaning it will have in the November elections.  This is not a seminal issue.  This is not a political hill to die on.  If I were coaching the GOP as a baseball batter, would say “take the pitch” and move on.

So, there ‘tis.