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Ketanji Brown Jackson confirmed, but GOP will dominate SCOTUS for years
Jon Lieber, head of Eurasia Group's coverage of political and policy developments in Washington, discusses the Supreme Court confirmation of Ketanji Brown Jackson.
Today's question, what does the confirmation of Ketanji Brown Jackson mean for the US?
She'll be the first black woman ever to serve on the highest court. What's the political significance of this? Not much. After Republicans took at 6-3 advantage on the court during the Trump administration, the conservatives now have what looks like a durable majority that will dominate the court for years to come. Brown Jackson's vote is unlikely to be decisive in many cases, which frequently split along partisan lines with the six conservative justices aligning in a block against the three liberal justices on issues like separation of powers, the scope of the federal government, and voting rights.
So the real story at the courts is what direction those six justices are likely to push the court in, and several big cases are likely to come this year that will question or challenge long-standing precedents of the court. The biggest is the potential decision in Dobbs v. Jackson, which is a case that could potentially overturn the 40-year-old precedent set by Roe v. Wade that prevents states from banning abortion. Nonetheless, several states have banned abortion over the last several years, some in preparation for a decision in Dobbs and some because they wanted to force the issue and put it in front of the newly conservative Supreme Court. This is likely to be the blockbuster case on the court's docket with massive political implications in the US, and will be the culmination of effort by a generation of conservative activists to overturn what they see as the canonical example of judicial overreach.
But there are several other longstanding precedents the conservative court may challenge, including on affirmative action in college admissions, gun rights, public support for religious schools. And perhaps most significantly for the economy, the court could rule in a case challenging the EPA's ability to regulate CO2 emissions, which could set a new precedent that would further limit the executive branch from pushing major new regulations that are not explicitly authorized by Congress. This would be a huge rollback of the US administrative state and could affect everything from environmental regulation to financial regulation.
So the Brown Jackson confirmation represents a near-term win for the Democratic Party that's only a minor part of a series of long term losses for the Democratic Party who are unlikely to be able to move the balance of power back in their favor on the court, at least until the next time they control the White House and the Senate, and have two openings on the court from either conservative justices passing away or retiring. This could be in 2028 or even later, depending on what happens in the 2024 presidential election.
SCOTUS confirmation hearings no longer serve a purpose
Jon Lieber, head of Eurasia Group's coverage of political and policy developments in Washington, discusses the Supreme Court hearings.
Today's question. Have the Supreme Court hearings lost their purpose?
Blanketing cable news this week are the Senate Judiciary hearings to confirm Ketanji Brown Jackson to the Supreme Court. Brown Jackson surpasses anyone's standard of a qualified Supreme Court justice. She's educated at the best law schools. She's been a Supreme Court clerk, a public defender, a trial court judge, and a circuit court judge. She's at least as qualified as anybody else serving on the court today. And nobody questions that she has a top notch intellect and character to sit on the Court.
So the questions she's facing this week at the hearing aren't about her qualifications. They are at best about her ideology, and at worst about things that have nothing to do with her, like culture war battles over the definition of a woman. And like every recent Supreme Court nominee, she's learned to be very careful and circumspect in describing her ideology so she doesn't give the other side anything to use against her.
So that raises a question. What's the point of having these hearings? Nearly every Democrat has already pre-committed to voting for her. And though they won't say it, nearly every Republican has already pre-committed to voting against her. There's no upside for members of either party in not voting with the team on this issue.
The hearings are generating little heat and even less light, because the Democrats basically have to support President Biden's pick. They're left to give fawning softballs that give the judge a chance to repeatedly emphasize her qualifications. And the Republicans are essentially showboating, hoping to create tweet worthy clips to justify their no votes in the proper partisan frame. Before Republicans changed the rules in 2017 to allow the Supreme Court justices to be confirmed on simple party line, majority votes, the opposition party would use the nomination hearings to ask tough questions, but at least some of them were looking for excuses to vote for a judge, since at least some of the minority party would be needed to confirm a judge. Indeed, all of President Obama and President Bush's appointees received bipartisan votes, and in the Clinton administration, the Supreme Court votes were nearly unanimous.
But since that time, the nomination process and the hearings have turned into purely partisan affairs. The three judges nominated by President Trump received only four Democratic votes, and it's unlikely that Brown Jackson received that many votes from Republicans. You could argue that there was something unique about each of the Trump justices, but the only thing unique about Brown Jackson is that she's clearly deserving of the job, but she will struggle to find a single Republican willing to say it.
So the hearings today served no purpose and could very well do harm in that they explicitly drag justices into these bitter partisan battles and help erode the neutrality of the courts, or at least the perception of the neutrality of the courts. Judges now are frequently framed as partisan ideologues who are committed to one political party or another, something that Justice John Roberts said he explicitly wanted to avoid. And that will have consequences for years to come, if the courts are asked to rule on voting rules or are asked to weigh in on contested elections in the coming years.
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- Ketanji Brown Jackson confirmed, but GOP will dominate SCOTUS for years - GZERO Media ›