April 5, 2022

Ketanji Jackson Confirmation Hearings: The Republican Punch and Judy Show.

by Hal Gershowitz

Comments Below

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.”

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17 responses to “Ketanji Jackson Confirmation Hearings: The Republican Punch and Judy Show.”

  1. Larry Kelley says:

    The questioning of Ms. Jackson pales in comparison to what the democrats did to the last two Trump nominees. Ms. Jackson is a champion of CRT and is soft on crime. She is a proponent of gender reassignment in minors, and as an activist judge, I do not believe she will follow the constitution.

    • Martha A Jewell says:

      Response to Larry Kelly: Punch? A title you claim?

    • Debra says:

      Response to Larry Kelly: You Sir, do not know of what you speak. Please sit down and let other mouths speak with knowledge.

    • Finley Judy says:

      The Constitution is really being followed now? The clowns given seats by Republicans were given low ratings from their own peers. And I’m not talking about the Federalist who put them there to be activists.

  2. McCracken Connie says:

    Thanks for letting me join this group!

  3. Jamie Kabler says:

    Your column on the Supreme Court Hearing was excellent . You are spot on about comparing this to McCarthy hearing. These Republican Senators demean their office

  4. Perry says:

    While she faced harsh questions her answers were less than spectacular. Compared to the
    impalement that Justice Kavannaugh was treated to her questions were milder to the point and
    generally not worthy. While I welcome any bright new justice to the Supreme Court my mind
    is still undecided upon her future contributions to the Constitution.

  5. Michael Kay says:

    When President Wilson nominated Louis Brandeis to the Supreme Court, the Senate determined that a hearing on the future Justice’s qualifications was in order. This was the first such hearing. (By the way, it lasted 4 months and Brandeis never attended it.) The mere fact that Brandeis was Jewish generated significant “public opposition” and for many was disqualifying. As a lawyer, Brandeis had articulated a “right to privacy” and encouraged the evaluation of cases utilizing socio-economic evidence, testimony from experts as a means of molding (or changing) legal precedent.
    In 1916, the New York Times argued against his nomination by editorializing that the Supreme Court “…protects the people against the errors of their legislative servants, it is the defender of the Constitution itself. To place upon the Supreme Bench judges who hold a different view of the function of the court, to supplant conservatism by radicalism, would be to undo the work of John Marshall and strip the Constitution of its defenses…” In 1939, the Times noted that Brandeis’ retirement takes from the Supreme Court one of the great judges of our times — a Justice who “…has regarded the Constitution as no iron straitjacket, but a garment that must fit each generation.”
    If we can see through the heat of these public spectacles to find some actual light (and it appears not much has changed in 100+ years), regardless of our views, we should all be confident that the process will continue to provide Justices who will, in fact, preserve, protect and defend the Constitution to allow all 330,000,000 of us to enjoy the blessings of liberty.

    • Mimsy says:

      Well said. Opinions do change with the times, as they must, but there was no evidence presented supporting that Judge Jackson would not defend & support the Constitution once/if she was appointed to the bench.

  6. Wendy S. Gross says:

    Outstanding column. If I were your teacher I would give you an A plus. In fact, I consider myself lucky to be your student! Bravo!

  7. Mike says:

    In 1993, I had the privilege of sitting with 15 other CEO’s as we talked with Clarence Thomas in his Supreme Court Chambers for two hours.

    I had the opportunity to ask him what he took away from his Supreme Court Hearings. (For those who did not witness this spectacle, it was to quote Justice Thomas, “a it is a high-tech lynching for uppity-blacks who in any way deign to think for themselves, to do for themselves, …”)

    His response was sobering: “I grieve for America. When I was raised my grandparents taught me that there were limits. What I experienced was that there was no depth that was too low for some to go in an effort to derail my confirmation.”

    Hal, I find it interesting that when the Dems were embarrassing themselves with the Kavanaugh or ABC hearings, did you write any column specifically calling them out? If so please refresh our memories. Everybody knows that there are two standards that apply for Supreme Court hearings; one for democratic nominees and the other standard for republican nominees. The difference is magnified when the republican senators embarrass themselves by trying to act like democratic senators. The reality is that democratic senators are very good at playing in the dirt. For republicans they have to pretend they are as nasty and dirty as Chuck Schumer and his counterparts.

    I also had the opportunity to talk with Judge Bork about his confirmation hearing and the baseless attack from Senator Kennedy. In case you did not know the dems created the term: “Borking.” The dems invented it. Yet your column just gives a passing reference to the debacle that the dems create with every republican nominated judge.

    Hal, at this point do yourself and your audience a favor. Update your bio to read “former” republican who now doesn’t like republicans now.”

    • Response to Mike: Mike suggests that I do myself and my audience a favor by updating my bio to read that I am a “former” Republican who now doesn’t like Republicans anymore. I would be doing no one a favor by making such a false statement as there are too many Republicans that I do like and admire. Three Cheers for Larry Hogan of Maryland, Liz Cheney of Wyoming, Mitt Romney of Utah…and believe me I could go on and on. There are scores of Republicans whom I admire. I had high hopes for Anthony Gonzales of Ohio, but he threw in the towel after receiving death threats against him and his wife and children. His departing message, “Mr. Trump is a cancer for the country.”
      That said, Mike is correct. I could have elaborated with specificity when I referred to Democrats conducting their own Punch and Judy shows when various Republicans were being considered for Senate confirmation.

  8. Janet Snoddy says:

    It would not matter what questions were asked by the Republicans, they would be smeared as racist and disrespectful. That’s the playbook. At least they predominantly focused on her record. While fully qualified to serve, we will see very leftist “activist” opinions and support from this judge, rather than constitutional based opinions. We watched the various Dems perform character assassins on the Republican nominees. You mentioned those, but in my opinion glazed over the horrid Dem behavior, as Spartacus and his crew cast aspersions, and did their best to sandbag one candidate and insulted the character of the second because she of her religion. But only the Conservatives are supposed to to nonpartisan. Dems are allowed free rein to be despicable.

  9. Chris Haedt says:

    I have to wholeheartedly agree with Janet. Hal, as I always look forward to your weekly essays, and am educated as well, I appreciate your last paragraph in your response above, mentioning your lack of examples from the Democrats conducting their own Punch and Judy shows.

    I am not sure why we are not addressing 3 key issues in our country: Inflation, Gas Prices, and the Border Crisis.

    • Stephen Ossias says:

      In response to Chris Haedt: I, too, am educated and clearly understand the insignificance of your three biggest concerns that have nothing to do with issues of Supreme Court appointments.

  10. TJB says:

    Dear everyone- “whataboutism ” is getting pretty old. No one needs tell us that Democrats act like morons just as well as Republicans do. How about we start holding everyone that has been elected to serve us the people to account for their behavior? How about they actually do serve us by really working for us?

    I watch senate hearings quite often and have to say there should be a law against using committee hearings as campaign events! Seriously the first round is constant grandstanding and it is insulting or at least should be to all of us.

    I appreciate your column sir as you did spend time whipping both parties. I also appreciate that you took time to lay out Ms. Jackson’s qualifications. This newest Supreme Court Justice is more qualified than most to serve and while some may feel her answers were sub par I would ask you this: was she allowed to fully answer many of those questions? If you say yes you’re deceiving yourself.

    I enjoyed the essay and look forward to reading more from this group. Thank you!

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