Newswise — On the second day of her confirmation hearing, Supreme Court nominee Ketanji Brown Jackson faced 13 hours of questioning from members of the Senate Judiciary Committee, defending her record as a federal judge and public defender after being pressed on her judicial philosophy by some senators. 

Day 3 of the hearing saw much of the same, as another marathon round of questioning ran well into the evening, with some members of the committee criticizing Jackson’s record and others praising it. 

Such proceedings, said Casey Klofstad, a professor of political science in the University of Miami’s College of Arts and Sciences, tend to be “more style than substance.” 

“The lines of questioning by the senators are largely symbolic politics. Judge Jackson’s successful appointment is all but assured. As such, the confirmation hearings are used as an opportunity by both sides to make rhetorical points, receive media coverage, and appeal to their political bases,” Klofstad said. 

If confirmed, Jackson will replace liberal Justice Stephen Breyer, who is retiring at the end of the current court term in June.

While her confirmation will not change the ideological balance of the court—conservatives hold a 6-3 majority over liberals—it would nonetheless be a history-making moment, as Jackson would become the first Black woman in the court’s 233-year existence. 

Thursday, the final day of the committee hearing, will include outside witnesses. 

School of Law and political science experts answer questions about other aspects of Jackson’s confirmation hearing. 

Jackson answered questions for more than 12 hours on Tuesday, and on Wednesday she faced another marathon question-and-answer session. Why is the confirmation process so grueling for Supreme Court justices?

Twelve hours on the second day of the hearing before the Senate Judiciary Committee was long by any standard. Even then, two members of the committee had to wait until the third day for their moment before the cameras. There is no reason that the hearing should have been this long if one looks at it from the perspective of its stated purpose, which is to determine whether a nominee is qualified for a lifetime appointment to the United States Supreme Court. The actual reasons relate to the members’ purposes to advance their own careers by giving each member of the Senate Judiciary Committee his or her moment in the spotlight and before the camera. There is no doubt that Judge Brown Jackson is highly qualified. Few of the senators have her educational credentials or her judicial experience.

Frances Hill, professor of law and Dean’s Distinguished Scholar for the Profession in the School of Law 

The selection of Supreme Court justices is an extremely critical process, but recent Senate Judiciary Committee hearings with these candidates have not been very informative, with the exception of the hearing on allegations against Brett Kavanaugh. Since the defeat of Robert Bork’s nomination in 1987, nominees have tended to provide as little new information about their judicial views as possible. In addition, senators often use the hearings to attract attention to themselves, especially if they are considering a presidential campaign.

Gregory Koger, professor and chair of the Department of Political Science in the College of Arts and Sciences

What are senators trying to accomplish with their line of questioning? Is it to get a sense of how Jackson will rule on controversial cases? 

Confirmation hearings are not always about the nominee. Some of the questions asked of Judge Jackson appear to be aimed at connecting her to a specific past as a public defender. This may be aimed at deterring the Biden administration, which has nominated more public defenders to the bench than prior administrations, from continuing to do so. But, more likely, it is an effort to connect “lawlessness” in the public’s mind to “Democratic Party” judges and to the larger Democratic Party. The questions of Sen. Tom Cotton on Tuesday were certainly not aimed at assessing how the Judge would rule on controversial cases. His initial questions were about the need for more law enforcement, the length of sentences for felons, among other things that are clearly not within the purview of a federal judge—at least not in the way they were framed.

Charlton Copeland, professor of law, Dean’s Distinguished Scholar, and associate dean for intellectual life at the School of Law

Several senators on the judiciary committee see themselves as a candidate for president. To them, the committee hearing is about their personal political ambitions. Nothing is more alluring in their universe than a TV camera giving them free access to a national audience. The senators are hoping to generate sound bites for their campaign commercials. So, they are asking questions drawn from the culture wars, not from the Constitution. To them, the culture wars appear to be the more familiar territory. Fortunately, Judge Jackson is focusing on the law and the Constitution.

—Frances Hill

Do you have any takeaways from the line of questioning Jackson faced during her two days of testimony? 

Watching and listening to the Senate confirmation hearing, I was struck most by the extraordinary professionalism of Judge Ketanji Brown Jackson. Her responses were always clear regarding her role as a jurist. She expressed both her responsibilities and the limitations on the offices she held as imposed by Congress. Indeed, her responses demonstrate a faithfulness to the U.S. Constitution and the ideals of separation of powers embodied in it. What is disturbing is what occurred outside the Senate hearings, including the GOP’s attempt to paint Judge Jackson’s judicial philosophy as critical race theory. I might speculate that the GOP twitter attack on her is to deflect attention from the optics of watching the older, Caucasian gentlemen question this incredibly qualified candidate who has a record unimpeachable by any meritocratic standard.

Zanita Fenton, professor of law in the School of Law

One of my takeaways is Judge Jackson’s recognition and repeated articulation of legislative supremacy in the criminal context. Particularly in her exchanges with Senators Cruz and Cotton, she reiterated Congress’ role in establishing the parameters within which criminal sentencing takes place. Her responses were thoughtful and specific, particularly in the context of Senator Cotton’s attempt to challenge her decision to reduce the sentence of a convicted drug dealer through a compassionate release motion. Its consequences, however, will reverberate beyond her confirmation. Cotton will now stand on the platform and assert that the criminal justice reform legislation enacted during the Trump Administration—the First Step Act— was “a big mistake.” As I stated, the fall congressional campaign will be shaped, in part, around themes of the rise in violent crime and the picture will be painted of the Democratic Party and its judges as at the root of these issues.

—Charlton Copeland