Could Ketanji Brown Jackson Have Reset the Republicans' Agenda?

Ketanji Brown Jackson

Supreme Court nominee Ketanji Brown Jackson’s contentious hearing before the Senate Judiciary Committee contrasted her professional, calm demeanor against the vile, bullying behavior of a few Republican senators. Conservative firebrand Josh Hawley of Missouri had signaled in advance that he intended to attack what he considered to be her soft sentencing record in child pornography cases. Child pornography is, of course, an electrified rail in political debate. Many people think that child pornographers could never face a punishment that is too severe. Life in prison? Hang them? Break them on the wheel? A cloud of deep suspicion and false moral indignation was brewing over Jackson’s confirmation hearing. Should she have done something about that? Or was she wise to focus on her unimpeachable qualifications for the Supreme Court? 

Since anyone could see that this powerful but unfair attack was coming, the first question I asked myself was, why didn’t Jackson preempt Hawley’s argument, steal his thunder, and reset the agenda? Every debater knows that it is always dangerous but sometimes helpful to preempt the other side’s arguments. In this case, with the benefit of hindsight, Jackson might have done well to bring up the child pornography cases before the Republicans did. But maybe not. She might have won the debate. Still, by ignoring the danger as long as she could, she created the impression that she was dignified and calm. Put it this way: debating well is one thing, while being dignified or judicious is something else entirely. Lawyers debate; judges rule. Let’s look at the pros and cons, for debaters face this tactical question all the time.


First, the Republicans’ Arguments Were Mostly Bogus

Writing in the National Review, conservative lawyer Andrew C. McCarthy points out that the Hawkins case, the one that Republican senators talked about the most, involved a young offender who had cooperated with the investigation, had no criminal history, and had other mitigating factors. Indeed, McCarthy said that Hawley’s accusation that Jackson was soft on pornographers bordered on “demagoguery.” Similarly, the American Bar Association also found “no evidence” that Jackson’s sentences were excessively lenient. Writing for the Annenberg School of Communication’s FactCheck.org, Eugene Kiely and Saranac Hale Spencer also explained that the Republicans’ accusations on this issue were “misleading.” Nevertheless, Republicans’ dubious attacks carried emotional power.


Second, Jackson's Opening Statement Ignored the Coming Storm 

If Jackson wanted to preempt those accusations, her best chance was right at the outset. Instead, during her March 21, 2021 opening statement, Jackson stuck with glowing generalities. She established her human side by discussing her upbringing, family, and personality. She brought up personal history. That was all good. Indeed, she gave an excellent opening statement. She may have taken the best approach. All the same, the storm was brewing – a thundercloud was forming overhead – and everyone knew it.

Early in her statement, Jackson talked about the greatness of America while explaining how important Civil Rights legislation was to her success:

“The first of my many blessings is the fact that I was born in this great Nation, a little over 50 years ago, in September of 1970. Congress had enacted two Civil Rights Acts in the decade before, and like so many who had experienced lawful racial segregation first-hand, my parents, Johnny and Ellery Brown, left their hometown of Miami, Florida and came to Washington D.C. to experience new freedom.”

That was very nice. She also talked about her high school debate experience:

“I have also had extraordinary mentors, like my high school debate coach, Fran Berger, may she rest in peace: she invested fully in me, including taking me to Harvard—the first I'd ever really thought of it—to enter a speech competition. Mrs. Berger believed in me, and, in turn, I believed in myself.”

Jackson also discussed her professional qualifications by praising the distinguished people who mentored her legal career:

“In the category of great mentors, it is also my good fortune to have the chance to clerk for three brilliant jurists who became my professional role models: U.S. District Judge Patti Saris; U.S. Court of Appeals Judge Bruce Selya; and Supreme Court Justice Stephen Breyer.”

We did not, however, hear anything about child pornography.

On the one hand, it was ridiculous that the child pornography cases came up at all. As discussed above, the Republicans’ accusations lacked merit. On the other hand, Republican senators were already preparing their demagogic arguments. And everyone knew it.

And when the Republicans started to accuse Jackson, they were loud, obnoxious, rude, and foul. All the same, child pornography is such a controversial issue, and the Republicans’ presentation – especially those of Senators Hawley, Lindsey Graham, Ted Cruz – was so forceful and emotional, that they surely scored points with portions of the public. How were their arguments effective; how were they not effective? I plan to talk about that in an upcoming post. But, oh my goodness, were they ever loud!


Jackson Took the High Road – Was This Wise?

And Jackson did not respond in advance. Why not? First, she obviously wanted to give show that she was dignified, professional, and above the fray of day-to-day politics. Her positive, uplifting opening statement helped to accomplish that.

Second, preempting your opponent’s arguments always entails danger. For one thing, if she brought up child pornography, she would be walking onto her opponents’ ground. She would have to be very careful not to let them set the agenda. Also, when you preempt an argument, there’s always the danger that you might do a better job of explaining the issue than your opponents will. Since the Republicans did not explain themselves very well – as I hope to show in a future post – that was a real risk.

Third, however, if Jackson handled the issue carefully, she might have stolen some of the Republicans’ shock value. Could she have said something like this?

[Hypothetical – not Jackson’s words] “I have seen in the press that some people call me soft on crime, or, even more appalling, soft on sex crimes. I’m not. Let me explain. Every time I pass sentence on another soul, I look carefully at everything – the prosecutor’s recommendation, the probation office’s presentencing report, the defendant’s behavior before and after the crime, and all other relevant evidence. It is not a judge’s job to rubberstamp whatever the prosecutor says. Instead, a judge’s job is to protect everyone’s rights. My fair temperament in judgment in sentencing is reflected in the many endorsements I have been fortunate enough to receive. The International Association of Chiefs of Police, who are certainly not soft on crime, honor me with their endorsement. Judge J. Michael Luttig, a highly respected judge noted for conservative political views, endorsed me enthusiastically. Overall, my record shows that I strive to be tough on crime, but also compassionate and human, as I make judgments.”

Or something like that.

Would that have put the debate more on Jackson’s own ground? Obviously, nothing was going to slow down the Republicans’ vicious assault. The question was, who was going to control the agenda? And which agenda mattered the most? If confirmed, Jackson will make history as the first African-American woman to serve on the United States Supreme Court. It is hard to imagine any legitimate reason to oppose her. By rising above the political fray, Jackson showed herself to be dignified. That was a worthy rhetorical goal. If she had been proactive, could she have de-electrified the coming storm? For, when Republicans started ranting and raving their fear-mongering nonsense, she could no longer avoid the issue, could she? Once the demagoguery started, Jackson could no longer stay above the fray. In hindsight, it’s hard to say which approach would be best. What do you think? Feel free to make comments below. 

Image: Senate Judiciary Committee