Readers of some vintage, myself included, will remember being entertained as children watching Punch and Judy puppet shows at county fairs, talent shows, and even school. They were entertaining because skilled puppeteers could mesmerize an audience with the energetic antics of their puppets. Often lost in the tomfoolery and the merriment, however, was the reality that the Punch and Judy shows, which were first performed in 17th century England, were generally violent, with a cruel Punch invariably beating up on a vulnerable Judy. Punch was a miserable ruffian, a buffoon if anyone cared to pay careful attention. In one classic rendition, Punch even killed his daughter.
And speaking of ruffians and buffoons, let us turn our attention to the just-completed spectacle of Justice-in-waiting Ketanji Jackson’s confirmation hearings. Punch, in the persons of Ted Cruz, Josh Hawley, Lindsey Graham, Tom Cotton, and Marsha Blackburn, among others, played to their respective audiences, their constituents, by subjecting the very accomplished Judge (soon-to-be Justice) Ketanji Jackson to as inane a spectacle as the puppet, Punch, might have ever conjured. Let me hasten to add that Democrats have, on occasion, conducted their own Punch and Judy shows when Republican candidates have appeared for their confirmation hearings. The Republican attacks against Judge Jackson, not unlike equally gratuitous attacks against various Republican nominees, simply serve to diminish respect for our institutions, degrade the very processes we depend upon to assure the elevation of worthy candidates to high office, and highlight the pettiness that motivates some high-profile public officials we have entrusted with the task of conducting the nation’s business.
Consider these gems which were on display at the just-completed hearings considering Ketanji Jackson’s nomination to the Supreme Court. Senator Graham: “On a scale of 1 to 10, how faithful would you say you are in terms of religion”?
In fairness, Graham asked the question to remind everyone that Justice Amy Coney Barrett had been asked about her religion by Senator Dianne Feinstein during her confirmation hearings. Senator Feinstein, however, simply inquired whether Judge Coney’s deep religious faith would influence her decisions on the court. She didn’t ask Coney to rate her religiosity on a scale of one to ten.
Then there was Tennessee Senator Marsha Blackburn, who asked Jackson to define the noun, “woman.” Senator Blackburn, evidencing her own ignorance of, or contempt for, the law then hurled this gem at Jackson. “You used your time and talent not to serve our nation’s veterans or other vulnerable groups but to provide free legal services to help terrorists get out of Gitmo and go back to the fight.” Blackburn’s blatant use of uninformed and deliberately misleading innuendo reveals a lot about her and nothing about Justice-in-waiting Jackson.
Jackson was criticized, quite unfairly, for positions she took as a federal public defender, representing prisoners at Guantanamo. Now, no one of sound mind would have any sympathy for anyone guilty of terrorism against Americans, or against anyone else for that matter. Aside from the fact that federal public defenders cannot pick and choose their cases, they are obligated to provide federal defendants with the best defense they can. Indeed, our constitution and our entire justice system rest on that premise. Many prisoners at Guantanamo who have been incarcerated for many years are considered combatants who are not affiliated with another nation with whom we were or are at war. They are, therefore, not entitled to the protection accorded prisoners of war. However, they are entitled to the right of habeas corpus, that is, to protest the legality of their particular internment. No defendants in our country are required to prostrate themselves before the government. Ketanji Jackson’s work as a federal public defender is in the best traditions of the American legal system.
Not to be outdone, Senator Josh Hawley of Missouri grilled Jackson about her sentencing of a teenage high school student who had downloaded simply awful child pornography and traded some of it with an undercover officer. Jackson sentenced the boy to three months in prison and six years of supervision. The sentence she imposed was less than the federal sentencing guidelines, which are advisory but not mandatory. The prosecution argued for a two-year sentence that was also considerably less than the federal sentencing guidelines. Judge Jackson had, on several occasions, handed down rulings that are in the lower range and sometimes less than the federal sentencing guidelines. Still, her sentences have generally been consistent with those handed down by judges throughout the country. Hawley’s depiction of Jackson as soft on pornography is spurious, as evidenced by the fact that her sentences in five of the seven child pornography cases which she adjudicated were the same as, or greater than, that which the U.S. probation office had recommended. In other words, she used her judgment based on the facts of a case and her assessment of the appropriate punishment for each defendant.
Arkansas senator Tom Cotton spent the bulk of his time appealing not to Jackson’s intellect or experience in the law but to the lowest common denominator among the fear mongers in Congress: “Do you think we should catch and imprison more murderers or fewer murderers?” he asked. And then there was this shameful Cotton drivel, “The last Judge Jackson left the Supreme Court to go to Nuremberg and prosecute the case against the Nazis. This Judge Jackson might have gone there to defend them.”
But all of the well-honed and practiced attempts at character assassination simply reflected ugliness back onto Ketanji Jackson’s partisan inquisitors and detractors. At the end of the process she stood tall, an inspiration to millions of others who remain burdened by the legacy of an unholy and unjust time in the great American experiment.
America sings with Justice-in-waiting Ketanji Jackson’s story. Raised in a working-class family, her father studied at night to become a lawyer. Several members of her family chose law enforcement as their life’s work. Her brother was a police officer who also volunteered and served two tours of duty as an Army officer in Iraq and Egypt, which speaks to her family’s commitment to our country. Her uncles were police officers, including one who served as Miami’s Chief of Police. Ketanji Jackson was a stellar public-school student, studied her way to Harvard, graduated in 1992 magna cum laude, and then worked as a staff reporter and researcher at Time Magazine. She returned to Harvard and went on to earn a Juris Doctor, cum laude, and was appointed a supervising editor of the Harvard Law Review. Following law school, she clerked for three federal judges (appointed by both Democratic and Republican Presidents), including Associate Supreme Court Justice Stephen G. Breyer, Judge Bruce M. Selya of the U.S. Court of Appeals for the First Circuit, and Judge Patti B. Saris of the U.S. District Court for the District of Massachusetts. Notwithstanding the weak-on-crime smear effort of her Republican senatorial antagonists, her nomination to the Supreme Court has been enthusiastically endorsed by the International Association of Chiefs of Police.
Senate confirmation hearings for Supreme Court nominees are a twentieth-century creation and, since the advent of television, are primarily conducted so that politicians of both parties can preen and perform before the cameras. In the case of Jackson’s hearings, they served mainly to remind the country, as attorney Joseph Welch did sixty-eight years ago in the Army-McCarthy contretemps, that decency is often the lowest coin of the political realm. Ketanji Jackson became the Judy in the Republican Punch and Judy show.
The question Joseph Welch posed during that other low point in the theater of Senate hearings remains appropriate today. “Let us not assassinate further. You have done enough. Have you no sense of decency.”