The Senate Judiciary Committee deadlocked 11-11 along party lines on the nomination of Judge Ketanji Brown Jackson to succeed Justice Stephen Breyer, who plans to retire from the Supreme Court this summer. Despite the tie vote on Monday, Jackson’s nomination can still go to the Senate floor using a procedure known as a discharge petition and a simple majority vote to place Jackson’s nomination on the calendar. Once there, Democrats expect to confirm Jackson before the Senate adjourns for its Easter recess at the end of this week.
Three Republicans – Sen. Susan Collins of Maine, Sen. Lisa Murkowski of Alaska, and Sen. Mitt Romney of Utah – have announced that they will vote for Jackson, virtually assuring her confirmation.
After four days of contentious hearings before the Judiciary Committee last month, the committee reconvened Monday for its final business on Jackson’s nomination. The vote followed over three hours of remarks by members of the committee outlining either their support or opposition. Some Republicans couched their criticisms of Jackson in praise, with Sen. Mike Lee of Utah describing her “impressive qualifications” and Sen. Ted Cruz of Texas, who overlapped at Harvard Law School with Jackson, characterizing her as “charming” and “talented” and noting that he had “always liked her personally.” But they assailed what Sen. Charles Grassley of Iowa portrayed as her “lenient approach to criminal law and sentencing,” particularly when it came to sentencings for defendants convicted of child pornography offenses.
Sen. Josh Hawley of Missouri rejected the argument that Jackson and other federal judges had imposed sentences that were lower than what the federal sentencing guidelines had recommended because the guidelines are outdated. The guidelines, for instance, call for enhanced sentences for defendants who use computers to view images of child sex abuse, but many experts have argued that, in the digital age, an enhancement tied to the use of a computer is no longer a reliable gauge of the relative seriousness of a crime.
Republicans also complained about the Democrats’ past and present treatment of conservative judicial nominees. Sen. Lindsey Graham of South Carolina lamented that Jackson was the first Black woman to be nominated to the Supreme Court only because Democrats had filibustered Janice Rogers Brown, a justice on the California Supreme Court, when President George W. Bush nominated her for the U.S. Court of Appeals for the District of Columbia Circuit. Brown was eventually confirmed to the D.C. Circuit after two years and served on that court for 12 years before stepping down in 2017; neither Bush nor President Donald Trump nominated her for the Supreme Court vacancies that occurred during their terms in office. Graham warned that if Republicans were to regain control of the Senate, someone like Jackson “would not have been before this committee.” “You would have had someone more moderate than this,” Graham added.
Democrats countered by emphasizing both Jackson’s credentials and the historic nature of her nomination. Sen. Richard Blumenthal of Connecticut called Jackson’s nomination a “joyous and historic moment for all of America” and contended that having Jackson on the court would make it “look more like America and think more like America.” Blumenthal described himself as “excited” and “proud” about the nomination but also “sad” because of the partisan divide over this “extraordinarily well-qualified nominee.”
Sen. Mazie Hirono of Hawaii pushed back against the Republicans’ portrayal of Jackson as soft on crime, depicting Jackson as a “mainstream judge” whose sentences are in line with those of judges from around the country, nominated by presidents of both parties.
Sen. Cory Booker of New Jersey – who invoked Festivus, the fictional Seinfeld holiday with its “airing of the grievances,” to describe the Republicans’ complaints about historical wrongs – noted that two major law-enforcement groups, the Fraternal Order of Police and the International Association of Chiefs of Police – are supporting Jackson’s nomination. Calling Jackson an extremist on crime, Booker noted, would mean that the FOP is soft on crime.
The committee put off its vote until Monday afternoon because Sen. Alex Padilla, D-Calif., was delayed in returning to Washington after a passenger on his flight experienced a medical emergency, causing the flight to return to Los Angeles on Sunday night. When the committee finally voted, all 11 Democrats voted for Jackson, while all 11 Republicans voted against her.
This post is also published on SCOTUSblog.