It only took a few minutes Wednesday for members of the Senate Judiciary Committee to stir up lingering partisan bitterness over the judicial confirmation process at the first hearing for President Joe Biden’s picks for vacancies on the federal bench.
Chairman Richard J. Durbin opened the hearing by saying the slate of five nominees was a welcome change from those under former President Donald Trump, because they were qualified and would bring diversity to the bench with both their racial and professional backgrounds.
Wednesday’s most high-profile nominees, Ketanji Brown Jackson for the U.S. Court of Appeals for the District of Columbia Circuit and Candace Jackson-Akiwumi for the U.S. Court of Appeals for the 7th Circuit, are Black women who previously worked as public defenders.
Over four years, Trump appointed 54 judges to the circuit courts — “None of them, not one of them, was Black,” Durbin said — and only two of the current 179 appeals court judges spent time as public defenders.
“Thankfully, with today's five nominees, the Biden administration has taken important steps toward orienting the courts back toward evenhandedness, fair-mindedness and competence,” the Illinois Democrat said.
And Rhode Island Democratic Sen. Sheldon Whitehouse noted in a tweet as the hearing started that the nominees were qualified and diverse and it was “the first time in a long time I can say that. Feels good.”
Sen. Charles E. Grassley of Iowa, the panel’s top Republican, in his first comments called for apologies from Democratic members on the panel to Supreme Court Justice Amy Coney Barrett, whose confirmation process just ahead of the November elections widened divisions between the two parties. No Democrats took him up on that.
“Last fall, we heard from them, time and time again for weeks, Judge Barrett was being put on the Supreme Court, for two reasons: One to steal the election from Donald Trump, and to get rid of Obamacare,” Grassley said.
“Well, I just checked. Joe Biden is president of the United States and Obamacare is still on the books,” Grassley said, though he did not mention that the Supreme Court has not yet ruled in a case that threatens the 2010 health care law. “If my friends don't want to apologize to Justice Barrett publicly, she's right next door and I'll bet she'd be happy to accept any apologies in person.”
Overall, Jackson and Jackson-Akiwumi sailed through the hearing with few signs of vigorous opposition from Republicans, which was the Judiciary Committee’s return to the judicial confirmation process with Democrats now in control and a Democrat in the White House.
Jackson could have faced more contentious questioning from Republicans in part because she would join the D.C. Circuit, which handles many administrative cases that affect policies nationwide, and has been mentioned as a potential Biden pick for any future Supreme Court vacancy.
Texas Republican John Cornyn said both Jackson and Jackson-Akiwumi had impressive backgrounds and that diversity meant that the public could have confidence in the judiciary — but brought up past confirmation battles for minorities picked for seats on the D.C. Circuit during the George W. Bush presidency.
“I’ve noticed a difference in the way those issues have been treated in the past, when my Democratic colleagues blocked for example Janice Rogers Brown, an African American on the D.C. Circuit, and Miguel Estrada,” Cornyn said.
Republicans brought up Demand Justice, a liberal advocacy group that focuses on judicial confirmations and has been one of the most vocal advocates of Congress adding justices to the Supreme Court after the last six years of Republican control of the confirmation machinery.
Cornyn asked Jackson if she agreed with the positions of Demand Justice, which he said has spent money to back her confirmation.
The organization previously sent a fundraising email centered on Jackson's nomination and described her as "exactly the kind of judge we need to rebalance a court system tilted in favor of the rich and the powerful."
“Demand Justice claims the Supreme Court is broken. Do you think the Supreme Court is broken?” Cornyn said. “Demand Justice says that the Supreme Court has been captured by Republican partisan interests, on its website.”
Jackson, currently a district court judge in Washington, declined to comment on those questions.
North Carolina Republican Sen. Thom Tillis went further, calling Demand Justice a “dark money liberal group” that was “one of the key reasons why we have these nominees before us today.”
Tillis said Demand Justice has a priority for “left-wing judges who will follow the liberal agenda instead of the Constitution if confirmed,” and the group put Jackson and Jackson-Akiwumi on their list of potential Biden picks “to help rebalance” the Supreme Court.
And Tillis pointed to Jackson’s ruling that sided with the House Judiciary Committee over former Trump White House counsel Don McGahn in a legal fight over a congressional subpoena, and insinuated that it was one of the reasons she was added to the Demand Justice list.
“Well we can debate the conclusions that Judge Jackson made, one thing is clear, the 120-page ruling had a purpose,” Tillis said.
Jackson responded that she can’t control what other groups or journalists say about her rulings, which are not made in a partisan manner and not done to try to gain influence.
New Jersey Democratic Sen. Cory Booker pointed out that Biden has said he doesn’t farm out responsibility to make choices about judges to an advocacy group, and Demand Justice put out their Supreme Court pick list after Biden declined to put out such a list.
“That is dramatically different than what former President Trump said,” Booker said, since Trump said his nominees would all be picked by the Federalist Society and had turned to that group and The Heritage Foundation to put together his original Supreme Court short list.
Demand Justice, in a statement from Executive Director Brian Fallon, said that Republican senators' repeated attacks on Demand Justice “show they couldn't seriously criticize the records of these two highly-qualified nominees, so they went after our organization instead.”
“If Republicans feel this threatened by our work to restore balance to our court system, we must be doing something right,” Fallon said.