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Tell It to the Judge

Today, every Supreme Court nomination immediately flares into a pitched partisan battle


Once upon a time, qualified nominees for the US Supreme Court chosen by presidents of either party were routinely approved by overwhelming bipartisan Senate votes. The conservative Antonin Scalia was confirmed by a 98-0 vote, and the liberal Ruth Bader Ginsburg was confirmed 96-3. Even the Court’s first black justice, Thurgood Marshall, received 69 votes in 1967, when America had just recently emerged from segregation. Much later on, the vote margins weren’t as large, but still quite comfortable. As recently as 2009, Sonia Sotomayor was confirmed 68-31, and a year later, Elena Kagan received 63 votes.

All of that is a bygone era, however, as today, every Supreme Court nomination immediately flares into a pitched partisan battle. This new front that has opened in the political wars takes two forms, one of them ridiculous and the other outrageous. The first is that senators no longer cast their votes on a candidate for the High Court based on neutral criteria like competence, character, experience, and temperament, but instead on judicial philosophy and presumed political leanings.

That is, of course, a senator’s prerogative. But it has unfortunately turned confirmation hearings into boringly predictable affairs, a two-step dance in which senators attempt to bait a nominee into opining on purely political or cultural matters with no relevance to a seat on the Court, while the nominee seeks to deftly sidestep the issue.

It’s particularly striking when even those senators who strongly profess a belief that the role of judges is to decide the law rather than make policy try to goad a nominee into taking positions on things that are the province of legislatures, as happened repeatedly during last week’s confirmation hearings for Ketanji Brown Jackson. Arkansas Republican Senator Tom Cotton, for example, who kept trying to identify Jackson with criminal-justice reform efforts he vehemently opposed (legislation that was passed in 2018 and was in fact supported by the Orthodox Jewish community) asked, “Do you think the United States should strengthen or weaken sentences for fentanyl traffickers?”

Cotton knew well that Judge Jackson would respond, “Senator, these are policy questions. It’s not that they’re difficult questions — it’s that they’re not questions for me. I am not the Congress….”

It would be one thing were the problem limited to some theatrical demagoguery that both sides know is unserious. What’s far more egregious, however, is when senators take these hearings as license to mount hostile personal attacks and engage in serial distortions of the facts, the law, and the nominee’s record.

Perhaps there ought to be a Senate rule disqualifying Judiciary Committee members from subsequently becoming presidential candidates, or barring that, a ban on televised hearings. After all, several of the worst offenders at the Jackson hearings, including Senators Cotton, Cruz, and Hawley, were so patently grandstanding before the cameras to advance their 2024 political fortunes that all they lacked was a disclaimer at the end stating that their infomercial speeches, er, “questions,” were paid for by their PAC.

That mercenary calculus, however, can’t explain the truly execrable behavior of South Carolina Senator Lindsey Graham, who isn’t known to currently harbor presidential aspirations. He had no compunctions about repeatedly speaking over Judge Jackson’s responses and interrupting her when she tried to answer; on several occasions, she actually had to request a chance to speak, and even then Graham cut her off mid-answer or offered caustic commentary as she spoke. Finally, he dramatically stormed off the dais.

In addition, as she sat quietly before him, Graham subjected Judge Jackson to a series of harangues that had nothing to do with her or these hearings: about Democrats’ appalling behavior at the 2018 confirmation hearings for Brett Kavanaugh; about the authenticity of her religious faith, as payback for Dianne Feinstein’s assailing that of Amy Coney Barrett in 2019; and about the claim that she would not be the first female black justice were it not for the Democratic filibuster of a conservative black female back in 2003 (which isn’t true).

But in truth, we owe a debt of thanks to the senator from South Carolina and his colleagues. While reasonable people can disagree about Judge Jackson’s nomination even as they do agree that her inspiring personal story, stellar qualifications and bipartisan support in the legal and law enforcement communities are impressive, these senators have inadvertently given America a glimpse of something else that’s very important — her character and temperament.

Watching parts of the proceedings, it dawned on me how well-prepared and poised a nominee must be to endure these grueling three days. Facing the glare of the media and the scrutiny of the Senate and the nation, the nominee must be capable, under great mental and physical strain, of responding in the moment to hour after hour of questions across a wide spectrum of topics in law and legal philosophy posed by some very sharp questioners.

But Judge Jackson did more than that. For hours on end, she sat with restraint and dignity as, before her family and the country, numerous senators nastily browbeat her and insinuated that she’s soft on drug kingpins and terrorists, that she loosed predators on children, that she has a secret agenda to incorporate critical race theory into the legal system, that she held top American officials to be war criminals. It’s not merely that these were grotesque distortions of her record, but that they were made with such obvious, self-serving ill will.

And yet, she remained calm and composed, even smiling, emitting a mere sigh of exasperation now and then. Waiting until they finished their tirades, she then responded respectfully and succinctly. Watching her, I knew that in those circumstances, I surely would have failed that test.

SENATOR GRAHAM WAS RIGHT about the Kavanaugh hearings: Some Democratic senators did treat him as indecently as some of their Republican counterparts have Judge Jackson. But Graham’s invocation of that time also reminded me of a salient difference between the two episodes: How the person on the receiving end responded to allegations, which in Kavanaugh’s case were leveled not by senators but by a third-party accuser.

During those hearings, I corresponded with Judge Rick Haselton of Portland, Oregon, whom I profiled in these pages in 2018. As the former chief judge of the Oregon Court of Appeals, Judge Haselton rose to what may be the highest rank any frum Jew has attained in the American judicial system.

As a student at Yale Law School, his faculty advisor was Professor Robert Bork, and in the interview, Judge Haselton shared the pain he still feels over the Democratic savaging of his cherished mentor before and during Bork’s failed 1987 confirmation hearings. Regarding the Kavanaugh nomination, however, the judge took a different view. Here is an abridged excerpt:

I will never understand why he didn’t simply acknowledge, with quiet humanity and humility, that while he believes that the alleged conduct would have been deeply, fundamentally uncharacteristic, he cannot say with categorical certainty that it could never have occurred; that if it did occur, he is inexpressibly sorry; that all of us do stupid, insensitive, and hurtful things when we’re young, and we learn from them; and in all the years since, he’s tried to lead his life in as upright a manner as possible, both privately and in his public service, and thus, even if the alleged conduct occurred, it should not be disqualifying.

I believe that the nominee (and the Supreme Court and the judiciary generally) would have been far better served by such a judicious approach than by anger, offense/self-victimization, minimization, and aggressive defensiveness.

In the end, and regardless of the ultimately unprovable “truth” of the allegations, if I were voting, I would not confirm: It may well be naïve, but, for me, the qualities that the nominee exhibited are the antithesis of those of a judge.

But Judge Haselton wasn’t voting, and Brett Kavanaugh now sits on the U.S. Supreme Court. And if they hark back to an earlier, more civil time not so long ago, and evaluate Ketanji Brown Jackson based on judicial competence as well as judicial temperament and strength of character, perhaps some Republican senators will agree to reward her with a seat there, too.


(Originally featured in Mishpacha, Issue 905. Eytan Kobre may be contacted directly at kobre@mishpacha.com)

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