On Friday evening, Sen. Ben Sasse (R-NE), a member of the judiciary committee, released a statement explaining his decision to vote against the nomination of Judge Ketanji Brown Jackson to the US Supreme Court. Sasse engaged in several rounds of amiable and substantive exchanges with Jackson during her confirmation hearings, earning applause from observers who pronounced themselves aghast by the supposedly outrageous treatment of the nominee by other Republicans on the panel. The Nebraskan concluded that while Judge Jackson is sharp and qualified, he could not assent to her confirmation -- due to her record, ideology, and deflections on questions of judicial philosophy:
Judge Jackson is an extraordinary person with an extraordinary American story. We both love this country, but we disagree on judicial philosophy and I am sadly unable to vote for this confirmation. Judge Jackson has impeccable credentials and a deep knowledge of the law, but at every turn this week she not only refused to claim originalism as her judicial philosophy, she refused to claim any judicial philosophy at all. Although she explained originalism and textualism in some detail to the committee, Judge Jackson refused to embrace them or any other precise system of limits on the judicial role. Instead she seemed to imply, like Justice Elena Kagan, that originalism is just one of the tools judges use – not a genuine constraint on judicial power. Judge Jackson’s record makes it clear she has more tools in her toolbox.
It’s important to study the McGahn case, one of the few times Judge Jackson was asked to decide a novel constitutional question. Instead of carefully examining the constitutional principles, rooted in the text, that should have governed that case, Judge Jackson created a new, implied constitutional right to sue; discounted separation of powers principles; and, under the guise of abstract “constitutional values,” shoehorned policy views about the presidency into her opinion. This is a pattern. In Make the Road New York and in AFL-CIO v. Trump – which Judge Jackson described as two of her most important cases – higher courts unanimously reversed Judge Jackson for exceeding her authority. As I made clear in our Tuesday and Wednesday exchanges, it is one thing to explain a judicial philosophy but quite another to agree to judge bound by such a system of restraint...I am grateful for Judge Jackson’s service and wish her and her family the best as she takes her seat on the Court, but I am unable to consent to the nomination.”
This is a perfectly cogent and magnanimous explanation for an upcoming 'no' vote, but it set off an intense tantrum among online leftists and journalists. Sasse, who was one of a handful of Republican Senators to vote to convict President Trump in his second impeachment trial, was assailed as a gutless partisan hack, a sexist, a racist, etc. What ignorant nonsense. It's true that in a previous era, not long ago, a significant number of Senators who are opposed to Jackson's worldview would nevertheless vote in favor of her confirmation, thanks to her qualifications and deference to presidents' constitutional prerogative. The 'advise and consent' role was applied differently than it is today. And today's hyper-partisan standards have been established by the Left. The very people contorting their faces with rage over Sasse's benign statement are many of the the same people who have actively turned judicial confirmations into ideologically-driven, zero-sum bloodsport. It is the Left that has engaged in unilateral, partisan escalations over the course of decades, poisoning the judicial confirmation process -- from Bork, to Thomas, through to Kavanaugh.
The blame for this falls overwhelmingly on the Democratic Party and their supporters in the activist class, including many members of the media. They may recoil at that assessment, but it's an assessment of empirical and historical reality. During the Clinton presidency, nearly every Republican Senator voted to confirm Justice Ruth Bader Ginsburg (final tally: 96-3). Dozens of GOP Senators also backed the now-retiring Justice Stephen Breyer (final tally 87-9). This was after the Democrats' disgraceful treatment of both Bork and Thomas. During the George W. Bush years, Democrats pioneered new forms of obstruction in this realm, filibustering a well-qualified Bush nominee to a major circuit court because, in their own words, "he is Latino" and was therefore considered to be a political threat. Then-Senator Joe Biden also vowed to lead a filibuster if Bush nominated Judge Janice Rogers Brown, a well-qualified black woman, to the US Supreme Court. Even after these appalling machinations, Republicans kept playing relatively nice, despite adopting some of the Democrats' tactics, into the Obama years (Obama himself was an outspoken fan of opposing judges based solely upon ideological differences). Next, Democrats blew up the judicial filibuster, which they'd been abusing in novel ways, ending any hint of comity -- then proceeded to vote en masse against all Trump SCOTUS nominees:
Obama’s two SCOTUS justices got meaningful #s of GOP votes, despite philosophical differences (5 for EK, 9 for SS), then:— Guy Benson (@guypbenson) March 26, 2022
94% of Senate Dems voted against Gorsuch
98% of them voted against Kavanaugh
and 100% of them voted against ACB.
None of those votes were about CV’s. https://t.co/bvitbckjGI
Justices Sotomayor and Kagan received 14 confirmation 'aye' votes from Republicans. Democrats went nuclear in Obama's second term, their latest escalation. The GOP blocked Obama's final nominee from consideration in 2016, in retaliation for Harry Reid detonating the 'nuclear option,' and based on a precedent advocated by Joe Biden and Chuck Schumer. President Trump's three Supreme Court nominees (all eminently and obviously qualified) received a total of four Democratic 'aye' votes, combined, including zero for his third and final appointment. The people furious at Sasse and other Republicans ahead of next month's KBJ vote have, almost universally, supported every Democratic hardball tactic and one-sided power grab over the years. They were not outraged with Biden and others pledged to block a black woman if nominated to SCOTUS. They cheered when Reid et al changed Senate rules in 2013, then gnashed their teeth when this precedent was turned against their interests just a few short years alter. They eagerly participated in the unhinged mob attacking Justice Kavanaugh (many still repeating lies to this day), and believe Democrats were absolutely correct to unanimously vote against Justice Barrett.
In short, they favor Democrats' power plays, no matter how heinous, then seethe with rage when Republicans simply enforce the Democrat-crated new rules when the shoe is on the other foot. These are unserious, dishonest people -- especially the ones who loudly demand that Republicans put "country over party," when they really just want everyone to put "party (D) over party (R)." Many of these preeners spit hot fury at Democrats who occasionally fail to adhere to the party line (Manchin, Sinema), then heap irate shame upon Republicans who vote along with their party -- regardless of any previous, tough, 'maverick' votes cast. It's cynical hackery, which is why I suspect Sasse isn't losing much sleep over it. Speaking of cynical hackery, I'll leave you with my radio monologue shredding a recent and deeply embarrassing Washington Post editorial claiming that Judge Brown was treated worse than Kavanaugh at her hearings last week. There's gaslighting, then there's this: