The NPR Politics Podcast - Are Supreme Court Confirmation Hearings All Politics?

Episode Date: March 24, 2022

Wednesday was the third day of Ketanji Brown Jackson's Supreme Court confirmation hearings, but senators spent much of their time rehashing familiar lines of questioning. Republicans doubled down on charges Jackson is "soft on crime." And Jackson, like most nominees since Ruth Bader Ginsburg, did not comment on any potential issues that could come before the court. In an era of deep polarization, are the hearings just for show?This episode: White House correspondent Asma Khalid, justice correspondent Carrie Johnson, and senior political editor and correspondent Domenico Montanaro. Connect:Email the show at [e-mail] the NPR Politics Podcast Facebook Group.Subscribe to the NPR Politics Newsletter.Find and support your local public radio station.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Hi! This is Jack on your third grade social studies class, and we just returned from our field trip to the Michigan State Capitol. This podcast was recorded at 547 Eastern on Wednesday, March 23rd. Things may have changed by the time you hear it. Okay, here's the show. Adorable. I love how we continue to bring the demographic age down. Exactly of our listeners. Hey there, this is the NPR Politics Podcast. I'm Asma Khalid, I cover the White House. I'm Carrie Johnson, National Justice Correspondent. And I'm Domenico Montanaro, Senior Political Editor and Correspondent. And today on the show, it is day three of the Senate confirmation hearings for President Biden's Supreme Court pick, Katonji Brown Jackson.

At 9 a.m. this morning, members of the Senate Judiciary Committee kicked off another day of questioning for Judge Jackson. And as of this taping, which we are in, what, the ninth hour at this point, they are still going. Earlier today, Judge Jackson said her nomination is a sign of progress toward equality in the United States and said her confirmation would show people watching what is possible. One generation, we've gone from the reality of my parents' upbringing to the reality of mine. And I do consider myself, having been born in 1970, to be the first generation to benefit from the civil rights movement, from the legacy. But Jackson's nomination is about a lot more than symbolism.

It's about change. It's about politics. It's about politicians with future ambitions. So I actually want to begin by just asking, how do you think Judge Jackson has handled these two days of questioning? And Carrie, why don't you go first? Yeah, this has been exhausting to watch. I can't imagine what it's like to have to sit in the witness seat for all those hours on end under sometimes really hostile questioning from some of the younger conservative members.

I'm thinking here, Josh Hawley of Missouri, Ted Cruz of Texas and others, too. At one point this afternoon, I finally heard Judge Jackson kind of draw a line in the sand, and here's what she said. What I regret is that in a hearing about my qualifications to be a justice on the Supreme Court, we've spent a lot of time focusing on this small subset of my sentences, and I've tried to explain. You regret that we're focusing on your cases? I don't understand. So that was the nominee with Josh Hawley of Missouri. Hawley, from the get-go, has been focused on her sentencing in child pornography cases. We'll get to more of that later. But he just keeps driving home the point and sometimes very graphic detail, which has been hard for the nominee to sit through.

I do want to say there has been a moment of joy here for the nominee, maybe happy tears. And it's when Senator Cory Booker, a Democrat of New Jersey, really brought some life into the room and really perked up the nominee, really encouraging her a lot. You have earned this spot. You are worthy. You are a great American. She actually wiped away tears, right? Yeah, yeah. But don't worry, my sister.

Don't worry. God has got you. And how do I know that? Because you're here. And I know what it's taken for you to sit in that seat. So Domenico, how do you think that she's handled these questions so far? Yeah. And a lot of those questions were really repetitive. I mean, that's where she drew that line finally. But that tells you, I think, where Hawley and some other Republicans really want the

focus to be. Because they understand that people aren't watching the way we do. They're not watching over several hours, you know, multiple days. He wanted to make sure you could tell that that message was getting through. And that's what people heard from him. But I do think that this was a lot of what you're seeing with the midterm messaging on display from Republicans, particularly sentencing about the child pornography cases really, to me, to my ear, wasn't about child pornography, but about tying a Democratic nominee or a nominee from a Democratic president, you know, more broadly to being soft on crime. Exactly how I heard it as well. Yeah. Right. Which has been a message from Republicans toward, you know, Democratic candidates to say that they're soft on crime. So I do want to drill down a little bit more on this criticism that I would say for fairly

identical critiques we heard from some Republicans today around how Judge Jackson has handled cases involving the position of child pornography. We heard criticism from senators like Lindsey Graham, Ted Cruz, and Josh Hawley, as you all have mentioned. Carrie, can you remind us what is the legal issue here? Yeah, sure. So Congress sets up penalties for crimes, and then the sentencing guidelines, which judges take into consideration as advice, also offer some ranges. So what Judge Jackson was doing, as district court judges do all over the country, is weighing the facts of the criminal case in front of her against the background of the person who committed the crime, statements of victims and witnesses, and figuring out what the appropriate punishment is. And according to data from the Sentencing

Commission, about 70 to 80 percent of federal judges do tend to sentence these kinds of defendants to the same kind of sentences that Judge Jackson was issuing. So they say she's clearly within the mainstream. And yet the questions keep, keep coming up. And I hear you, Domenico, when you say that some of this is about midterm messaging, trying to tie her, trying to try Democrats to being soft on crime. And I assume that some of these men have 2024 presidential ambitions, but you know, maybe not all of them. I don't really put Lindsey Graham that category. So what do you think is going on there? Well, I think that this is, you know, clearly about, you know, one grievances that Republicans have had against Democrats and how they've treated,

they feel past nominees who are conservatives in what they feel are unfair ways, you know, and wanting to make Democrats as uncomfortable as possible. And I should point out that Graham, who has been one of the most vocal critics of Judge Jackson here on this issue in the Senate, voted in favor of her confirmation to the D.C. Circuit Court last year. He did. Yeah, and all of these cases that were on the books that were the subject of criticism were things much earlier in her career. So we have spoken quite a bit about what

Republicans were attempting to achieve out of these confirmation hearings. But Domenico, what do you see as being the goal for Democrats? What were they trying to accomplish here? And do you think they've been successful? Yeah, I think that Democrats largely would be happy with how these hearings have unfolded and how Judge Jackson presented herself. You know, I mean, these are this is a high wire act, you know, for as well as she kind of came across. And as far as there not being much news in what she said, that's kind of the goal. Right. That's the goal of the Say Nothing playbook. No drama, yeah. No drama, right? You're talking about almost a full day of questioning and sitting there. And I'm not sure how I would perform or act if I had to sit there and have people

talking to me, maybe misconstruing my record, saying things about me and my past and how I would present myself and how I'd operate under those lights. And I think it's an often overlooked thing about the pressure that somebody can be in and under when they're sitting there. All right. Well, let us take a quick break. We have plenty more to discuss, and we will do that as soon as we get back in a moment. And we're back.

And Kerry Johnson, since you are our legal expert here, I want to ask you about one particular moment that caught my ear. That was when Judge Jackson said in response to a question from Senator Ted Cruz that she would recuse herself from an upcoming case. I want to hear more. That was news to me. It was news to everybody. It was news to everybody. Republicans had signaled going into these hearings that they wanted to ask her whether she would recuse herself from an important affirmative action case involving Harvard University, the Supreme Court's going to hear next term. law school, and she currently sits on the Harvard Board of Overseers, which is a really big deal over there. And, you know, the ethics standards for recusal talk about an appearance of impartiality. And Judge Jackson, when she was asked this question by Ted Cruz, who was, by the way, her law school classmate at Harvard, basically defanged the whole attack and said, that's my

plan. If I'm confirmed, I'm going to recuse myself. Now, because the court at present is a six to three court dominated by conservatives, it's not clear that her lack of participation will affect the outcome. But it still was quite interesting in part because affirmative action is a very sensitive topic that's in the news almost every day. I mean, how about you, Asma? Did anything jump out to you as you were watching the hearings? You've been asking us about it. Yeah. I mean, so I've been texting the past couple of days with some Democratic activists, particularly folks who work to mobilize Black voters. And I will say that I've heard fairly consistent things from them, words like they thought it was at times disappointing how she was treated. They felt like that she was extremely calm under pressure. They felt like some of the

senators went kind of over the top and in their words were rude to her. And I bring this all up because, you know, I think that there were clearly tones. And one particular black activist told me that she feels like she was reading some of this and watching this differently because of the fact that she is a Black woman. And she does think that that could translate across the board, you know, in broader sort of political implications for what this might mean. And I say this because, Domenico, you have done so much reporting on how the president really needs a win ahead of the midterms. He is not doing well politically at all. And he needs to somehow energize his base. And there do seem to be a number of folks watching this, you know, particularly sort of the activist circles who feel like Judge Jackson has not been treated, in their words,

respectfully during these confirmation hearings. You know, whether or not this translates out beyond this, I don't know. You know, it's a fine line to walk. I think how some of the Republican senators decided to question the first Black woman nominated to the Supreme Court. And I am not entirely convinced that the line of questioning won't backfire for some of them. I have to say that when I sat down on Monday to listen to the launch of these hearings, and both Senator Durbin, who runs this committee, and Senator Grassley, the top Republican on the committee, and many others pledged that this would be a tough but respectful process and would not turn into a circus, as in their view,

some prior nominations have. Well, it wasn't a circus, but it really has not been pretty. And I have to tell you, when I heard Nebraska Senator Ben Sasse kind of call out some of his colleagues today, I really sat up and took notice. And I think we should recognize that the jackassery we often see around here is partly because of people mugging for short-term camera opportunities. And as the camera zoomed out, I noticed that Ben Sasse was sitting next to Ted Cruz, who was sitting kind of stone-faced during Sasse's remarks about cameras in the courtroom and cameras in the Senate. So before I let you guys go, I do have a final question, though,

as we've been talking about the tone and the sort of polarization that has seeped into these hearings. I mean, do you feel like the tone of the current hearing will affect the public's confidence in the court? I mean, I guess I asked this in particular because I was looking at some Gallup polling earlier that showed that Judge Jackson is essentially tied for the highest level of support from the American public for any recent Supreme Court nominee. She's up there with, I think, around 58 percent. And so it seems like she has more support from the public. And yet the proceedings, the hearings themselves have been at times, you know, fairly acrimonious. I was going to say, I think that it's going to have the effect on the Senate that the senators probably don't want to have. But I don't know how much lower Congress can get. And, you know, we've already seen the Supreme Court sort of angle toward

polarization with, you know, everyone viewing it through the lens of what party they're from, considering how elected leaders have started to talk about the Supreme Court, including the former President Donald Trump. And I don't see that that, you know, aircraft carrier turning around really anytime soon. Yeah, I would just point out that the court has three major, extremely divisive issues on the docket. We're waiting for rulings by the end of the term, probably in June. I'm talking here about Second Amendment rights, the scope of the right to bear arms, talking here about abortion. And then the

third case involves separation of church and public school funds. So these are extremely bitterly contested social issues and how the court comes out on one or all of them could also have an impact on public opinion moving forward too. All right, well, we will leave it there for today. This is Judge Jackson's final day too. All right. Well, we will leave it there for today. This is Judge Jackson's final day of questioning from senators. Tomorrow, senators will hear statements from outside witnesses like lawyers and professors.

And tomorrow, we will be back in your feeds at our regular time. I'm Asma Khalid. I cover the White House. I'm Carrie Johnson. I'm national justice correspondent. And I'm Domenico Montanaro, senior political editor and correspondent.

And thank you all, as always, for listening to the NPR Politics Podcast. You know, I have to say, I googled Jack Assery, and it actually has a definition. It's in the dictionary, I guess. He didn't just make this up. What's the definition, Domenico? Foolishness or stupidity. Well, he did run a university, right? He was like a college or university president, Ben Sasse. He's seen a lot of sophomoric antics, would you say?