U.S. Supreme Court nominee Ketanji Brown Jackson is the star of a bitter partisan spectacle

WASHINGTON—When the Senate confirmation hearings for U.S. Supreme Court nominee Ketanji Brown Jackson kicked off on Monday, Republican Sen. Ted Cruz said, “This will not be a political circus.”

Even as he was speaking, you could hear almost hear the calliope grinding out the familiar big-top theme song, and while Cruz himself wasn’t wearing a top hat, it wasn’t hard to see him preparing to play the role of ringmaster.

Predictably, the hearings have been a political circus, with Jackson walking a tightrope as senators perform various absurd feats of acrobatic argument all around her. It’s a spectacle of American politics with a media profile that may be second only to a presidential election. It’s about as public a job interview as you’ll find, televised in days-long marathon sessions, and then analyzed and debated in the media.

Yet such Senate hearings, in practice, serve mostly as an ineffectual forum for grandstanding for elected officials, and a chance for nominees to demonstrate how carefully they can avoid saying anything consequential as they demonstrate the ability to stay calm and genial as they are alternately smeared as demonic and then praised as candidates for sainthood.

The chances any of this affects Jackson’s chances of being confirmed are slim. That nominal purpose of the hearings has become an afterthought to more obvious culture war and electoral positioning goals among the legislators participating.

There is no comparable ritual in Canadian government, where our Supreme Court justices toil before and after their appointments in relative obscurity. The Canadian court is neither inconsequential nor apolitical: just look at its role in legalizing abortion or clarifying the terms of a province separating from the rest of the country. But the Canadian court is not politicized — our judges are not considered to be partisan actors serving as an extension of the electoral political parties.

The U.S. judges are not supposed to be that either. But the process by which appointments are made demonstrates that the politicization of the judicial branch of government by the legislative and executive branches is total.

And so this week, in Jackson’s hearings, any members of the public tuning in will have seen Democrats — partisans of President Joe Biden, who nominated her — devoting their questioning time to reading out testimonials to Jackson’s brilliance and suitability for the appointment (as Sen. Sheldon Whitehouse did Tuesday) or serving her Civics 101 softball questions to allow her to explain basic legal concepts, such as that all defendants are entitled to legal representation in the U.S. justice system.

And they will have seen Republicans — including, notably, Cruz, as well as Lindsey Graham and Josh Hawley — disingenuously attempting, at length, to smear her as soft on child pornographers (despite extensive debunking, including by partisan conservative media commentators who oppose Jackson’s confirmation, of any such evidence) in a transparent attempt to send signals to the QAnon conspiracists in their base. They will have seen Cruz stretching to absurd lengths to connect Jackson to the Republican hot-button debate about critical race theory in education—the Republican party’s Twitter account did the same Tuesday, posting a photo of Jackson with her initials crossed out and the letters “CRT” scrawled in — although the only apparent reason to think of that concept in connection to her is that she is Black. They will have seen a parade of Republican senators try to solicit her opinions on their favoured wedge issues of abortion, transgender rights and “court packing.”

Throughout, Jackson has responded calmly and often smiling, gently rebutting accusations about her record (“With all due respect,” she began dozens of responses), and even more often declining to answer “gotcha” questions on the grounds that a judge needs to remain arms-length from political policy debates.

This has been standard practice in the U.S. for nominees since the 1980s, when the Senate refused to confirm outspoken Reagan nominee Robert Bork. The goal of nominees has become to offer no opinions of any substance on specific issues. Meanwhile, as the hearings are televised, senators have every incentive to speechify in ways that will become clips on news broadcasts.

No nominee since Bork has been rejected by the Senate following a confirmation hearing, but that doesn’t mean there haven’t been bitter spectacles. In fact, the hearings for Republican nominees Clarence Thomas, who was accused in 1991 of sexual harassment by a former employee, and Brett Kavanaugh, who was accused during his hearings in 2018 of having sexually assaulted a woman while he was in high school, became notable for their contentiousness. Kavanaugh was confirmed by a vote of 50-48, the slimmest confirmation margin since the 1800s.

Republicans have not forgotten those battles. They brought them up frequently during Jackson’s hearing, generally to point out that they would never treat a nominee as poorly as they think Democrats treated Thomas and Kavanaugh. (It’s worth noting, however, that no such allegations of impropriety have been made against Jackson.)

On Wednesday, Graham spent most of his time attempting to smear Jackson as being excessively lenient on child pornographers. He concluded by reassuring her that he and fellow Republicans would never smear her in a way that would require her to respond to a specific accusation of sexual assault, as Democrats had done to Kavanaugh.

For what it is worth, the American public approves of confirming Jackson’s nomination by a margin of almost two to one, according to a Gallup poll, which the organization says is the second-highest level of support for a Supreme Court appointee in its history. Jackson is expected to be confirmed in a vote of the full Senate in early April.

But before getting there, there is this ritual to perform, offering all the partisan heat of a dumpster fire while shedding almost no light.