What is going on with the nomination of Ketanji Brown Jackson to the United States Supreme Court?

Typically, when a president of the United States nominates someone to the highest court in the land, a debate occurs over the nominee’s qualifications, but with a twist: Is there something in this person’s background which sheds additional light? Republicans and Democrats in the U.S. Senate differ over what matters—the former focusing on jurisprudence, the latter on personal traits.

Below I will expand on this party divergence, but let us start with what has marked the Senatorial (and broader) debate this week over U.S. Circuit Court Justice Ketanji Brown Jackson, the first black woman to be nominated to be a Supreme Court justice. Those personal traits are crucial, President Biden said in 2020 when he was campaigning for the office and has reiterated since, ostensibly to give “representation” to that demographic. But Democrats intend to insulate Jackson from the level of scrutiny that a potential member of our highest court deserves and demands. This is the President’s and his party’s, confirmation strategy.

Not surprisingly, Republicans generally are critical of this strategy and, I am happy to acknowledge, determined to examine the nominee on the merits. Specifically, they are challenging her judicial philosophy and her decisions in particular cases. Democrats hope to avoid consideration of the first and downright oppose examination of the second.

As members of the Judiciary Committee have an equal vote and voice, each has the right to express their opinions and to ask questions of the nominee. But it should be noted that the highly charged, or at least highly publicized, process we are undergoing developed only late in the last century, particularly with the nomination of the eminently qualified but highly contentious Robert Bork in 1987. For most of our history the “advice and consent” of the Senate was far less formal and far less politicized.

What has driven the often-messy debate over Supreme Court justice nominations is the deep divide between those who understand the U.S. Constitution, which the Court was established to uphold, in light of the understanding of those who wrote and ratified it in 1787-88; and those who believe that its relative antiquity requires it to be updated for the modern age in general and changing times in particular. It is eithera Constitution for the ages that is fully adaptable to changing times or a “living” Constitution that “changes with the times.”

Of course, jurisprudence must deal, in one way or another, with the political controversies of the day, which is most often the lens through which politicians of both parties are inclined to view it. However, Republicans are determined to preserve or revere it but Democrats are no less determined to challenge or ignore it. We rightly expect judges to make legal and constitutional judgments, not political ones, our eternal hope in the face of the many potentially fatal attacks the Constitution has endured since the founding.

Two of President William Clinton’s three picks for the Court were, like President Biden’s, demographically driven, both women and one Hispanic. In fairness, President Ronald Reagan nominated the first woman and before him President Lyndon Johnson chose the first black man. But neither was designed to insulate the pick from criticism, as evidently Judge Jackson’s serves that political function.

Democrats have taken serious offense at Republican review of Judge Jackson’s lower court decisions when, for example, she imposed a light sentence of only three months on a young adult trafficking in child pornography when the guidelines were for eight to ten years and the prosecutors’ was for two years. How dare Republicans challenge that decision? Democrats averred. She merely considered the law and the facts, they argued. I think the Republicans are right for questioning her judgment, which minimizes the role of the law to make the penalty fit the crime. In other words, she is soft on crime.

When asked about her judicial philosophy Jacksonlargely avoided the topic by laying out the mere methodology of every judge, a very narrow conception indeed. She did answer questions about the competing doctrines noted above, but did not choose sides.

A particularly puzzling, but revealing moment came when Tennessee Republican Senator Marsha Blackburn quoted the late Justice Ruth Bader Ginsburg, who said that the line between races was not firm but it was between men and women, and then asked Jackson if she could say what a woman was. The nominee said simply that she wasn’t a biologist! That was laughed off by Democrats, who ignored mentioning Ginsburg’s words, but which provide the foundation for Sen. Blackburn’s question.  Of course, just now the definition of a woman is in controversy by virtue of the LGBTQ challenge to human biology, which is a matter of genetics rather than mere preference or self-proclaimed “identity.”

The judicial nomination of Brett Kavanaugh, so much more explosive than the Jackson nomination, nevertheless was similar in that Republicans then, as now, were considering qualifications and Democrats were focused on personal allegations—false, as it turned out—of sexual harassment and worse in Kavanagh’s younger days.

Why that palpable difference between the parties? As indicated, it stems from the Republicans’ determination to preserve the Constitution and the Democrats’ desire to put it in the service of political objectives.

One historic example will suffice. In Roe v. Wade in 1973, decided by a 7-2 vote, the Court invented a non-existent right to abortion on demand, a decision long applauded by Democrats and criticized by Republicans. The Constitution, I affirm, was devised to implement the Declaration of Independence which proclaimed the natural rights of all to life, liberty and the pursuit of happiness, but which does not include any “right” to kill a child in the mother’s womb.

Democrats are pandering to a core constituency that devalues life and the Republicans are upholding the natural rights of all citizens. That is the foundation of these judicial nominations.