Embarrassments Abound At SCOTUS Hearings

The confirmation hearings of Kentaji Brown Jackson have served to showcase much of what is wrong in our government.

If you’re like me and you believe that, in our society, power is in the hands of those who are either incapable, incompetent or flat-out dishonest, then the current hearings going in the Senate Judiciary Committee for Supreme Court nominee Kentaji Brown Jackson provide further evidence in support of that belief. The performance of most everyone—from the nominee herself to some prominent Republican questioners is either embarrassing or just plain disturbing.

DUMB AS A BOX OF ROCKS? PART 1

Watching Judge Jackson fumble, hem and haw through her answers to questions on controversial cases surrounding sex offenders left me wondering this very question. Is she really this clueless about the cases she ruled on?

Before you defend her by saying that she’s ruled on a lot of cases and can’t be expected to remember them all at the drop of a hat, remember this—Republican senator Josh Hawley (the one bright spot of these hearings) previewed the line of questioning he would take on Twitter before the hearings even began. The fact the judge would be questioned over what is a demonstrable pattern of behavior of leniency in sentencing to sex offenders (the polite word for “pedophile”) should certainly have been anticipated.

I realize that questioning the intelligence of a black female is supposed to be out of bounds. But this is one of the nine most powerful jobs in the country, even more so than the presidency because of it’s lifetime nature. And if Judge Jackson really doesn’t know the answers to these questions, then yes, she is as dumb as a box of rocks. I would say that about a white man (including one that I’m getting to further down) and being an equal opportunity believer, I’ll say it in this case.

Now, I’ve been italicizing the word “really” because what I actually think is that Judge Jackson knows full well the answers to these questions and either she (or, more likely, her political handlers at the White House) are worried about what the rest of the country will think in a midterm election year where Democrats have enough problems. The fact that Jackson briefly engaged with Hawley before going back to hemming and hawing does lead me to believe that this is the case.

It's unfortunate, because there is a legitimate debate to be had. Hawley’s line of questioning is perfectly appropriate. He identified several cases involving sex offenders and noted the overall body of work in Jackson’s rulings is to give sentences below what is asked for prosecutors for those convicted. Hawley has not accused Jackson of being a pedophile. Hawley has not pulled out a college yearbook looking for evidence that Jackson has some kind of fondness for kiddie porn. Instead, Hawley has asked someone seeking the most prestigious judicial seat in the land about her concrete record on actual cases.

The cowardice of whomever is advising Jackson is politically understandable, but legally unfortunate. It was noted in the hearings that child porn laws have not kept up with the explosion that has happened since the rise of the Internet and judges can be put in difficult positions. I’ve seen some allusions on social media of people saying that Jackson’s record isn’t really that far out of the mainstream.

I don’t know if any of these defenses are true or not, because when people make them, they immediately go into attacking her questioners rather than substantiating what is an interesting claim. That’s a loss for everyone.

Furthermore, Jackson’s brief engagement with Hawley seemed to point to what has long been a conservative-liberal divide in areas of criminal justice. At the risk of painting with too broad of a brush, conservatives are for the hard crackdown and liberals look at rehabilitation. I tend toward the conservative side here, but it’s not like there’s no argument for making rehabilitation a priority and circumstances where it’s appropriate. If Jackson believes this, now would be a good time to make that argument.

Anyway, there was the potential for an interesting legal debate to be had. But instead, the judge is left fumbling around and looking like a moron rather than engaging in the debate.

THE ANSWER IS NO

I hope this nomination is defeated. There was a time—like as recently as five years ago—when I would have taken the position that Judge Jackson was a reasonable pick for a Democratic president, so why not just confirm her and get on with it. But the hearings over Brett Kavanagh and Amy Coney Barrett changed my view on that.

We all remember the smears heaped on Kavanagh. Less well remembered is that Democratic investigators in corporate media went looking for dirt on Barrett, even to the extent of looking into her adoption of two poor black children from Haiti and seeing if there was anything to be found there. The mere fact we have a major political party that now does this is a matter of course has led me to say that enough is enough.

What that means in practice is that my proposed answer on any Democratic nominee to any federal bench can be summed up in one word—NO.

It doesn’t have to be that way forever. When the Democratic Party is willing to come to some modern-day version of the Appomattox Courthouse and negotiate civil terms of political warfare, then I’ll go back to my pre-Kavanagh position. Until then, we have nothing to discuss. The answer is NO.

DUMB AS A BOX OF ROCKS PART 2

In October of 2020, Lindsey Graham (R-SC) was in what most bad pollsters believed was a tough re-election fight. For me, this was before I had found the work of pollster Richard Baris, and was still trying to sort through the various corporate media polls to get a handle on races. Anyway, appreciating the work Sen. Graham had done on behalf of Kavanagh and Barrett, I sent the senator’s campaign a $25 contribution.

It was a purely transactional move—Graham did something good, and I rewarded him, so it’s not like I have regrets. But my goodness, the last several weeks have been one long display of Graham seemingly trying to show he’s the dumbest individual in the U.S. Senate.

We could start with his call for the Russian people to assassinate Vladimir Putin. Yes, by all means, let’s unleash political chaos in a nuclear-armed country with no idea of who would take over next. Hard to see where that could go wrong.

Now we come to his absolutely pathetic display of questioning during the Jackson hearings. He went down the path of asking her about her religion. Something I thought we had established during the Barrett hearings was out of bounds—with Graham being a key leader on that front. Then, Graham asks Judge Jackson to grade her commitment to her faith on a scale of 1 to 10.

This is simply the dumbest way of asking anyone about religion I can think of. Of the many times where Jackson looked flummoxed and unable to answer throughout the hearings, this was the one time I sympathized.

It’s a question for which there is no good answer. The person who gives themselves high marks on their practice of religion, by definition is really worthy of low marks. It’s said that humility is the virtue where, as soon as you believe you have it, then by definition you don’t.

Most people, even non-churchgoers, would grasp that it’s not something you grade anyone on a scale of 1 to 10—especially not yourself. But apparently that was too much for Lindsey Graham. We’re stuck with this guy until 2026, thanks in some small part to my twenty-five bucks. But it’s time for South Carolina Republicans to start looking for some fresh blood when Graham’s term is up.

TOM COTTON’S DANGEROUS PATH

The Republican senator from Arkansas, Tom Cotton, is anything but dumb. A decorated military officer in Bush’s Middle East Wars and an Ivy League graduate, Cotton is sharp and articulate. He put that to use in his questioning of Judge Jackson regarding her representation of people accused of terrorism and being held in Guantanamo Bay.

Cotton’s line of questioning was perfectly legitimate—it was about Jackson’s legal record. But the none-too-subtle implications were dangerous. Cotton was clearly implying that neither Jackson nor any other lawyer, had any business taking on the legal defenses of those being held on terrorism charges.

The right to counsel is fundamental to the Fourth Amendment to the U.S. Constitutions, an amendment that also protects people against warrantless searches or the abuse of getting search warrants. Like all rights, the right to an attorney doesn’t mean much if it gets thrown out the window the moment certain classes of accused people become politically untenable.

At the risk of stating the obvious, the point of our criminal justice system is to ascertain whether guilt beyond a reasonable doubt exists. How can we be confident that the system is doing its job unless every single defendant gets the most effective counsel realistically available? That counsel must be vigorous and zealous, challenging the prosecution every step of the way. When a prosecutor’s charges can still hold up under this type of intense scrutiny, we can feel as confident as humanly possible that a guilty verdict is just.

We demonstrate our horror at crimes like terrorism, pedophilia and others by the penalties that get handed out after a person has been found guilty beyond a reasonable doubt. Not by casting aspersions on the very idea of representing the accused to begin with.

Conservative voters have great regard for the Founding Fathers. So, it’s worth nothing that the Founders were far more concerned about innocent people being railroaded than they were about losing convictions against those who were guilty.

Ben Franklin held to the view that was better for a hundred guilty people go free than for one innocent to be wrongly convicted (a sentiment the fictional Dwight Schrute hilariously flipped on its head in an episode of The Office). John Adams, to his dying day, was proud of his work in representing the British soldiers who fired into the crowd at The Boston Massacre. Not because Adams wasn’t horrified at what had taken place. Because he believed in the basic foundations of a system of justice.

Furthermore, you don’t need to go back to the Founders to find plenty of reasons for voters sympathetic to conservative causes to rediscover the Fourth Amendment. It was the protections under this amendment that were gravely breached when Hillary Clinton’s campaign used false information to get warrants to spy on Donald Trump’s presidential campaign, and then to continue that spying in after Trump went to the White House.

I fear a government going rogue, something we are seeing a frightening amount of in our country today. And while I’ve generally liked Tom Cotton, his questioning of Judge Jackson did not sit well with me.

DAMNING WITH FAINT PRAISE

I come to praise Ted Cruz’s questioning. He joined with Hawley to lead the best questions on pedophilia sentencing and Critical Race Theory. The questions were in-bounds and they was also very tough and pointed.

It was the political equivalent of playoff hockey, where the body checks into the boards get tougher in the postseason. For too long, we’ve seen two extremes on display in confirmation hearings—Republicans act like it’s a regular season game, where you just relax, play it out and have fun. Democrats go to the opposite end of the spectrum and not only do the hard checking, they play dirty and put a stick in someone’s eye. The questioning of Cruz and Hawley found the right intense middle ground.

But all it does is remind me that for all of Ted Cruz’s talent, he seems to be more a show horse than a workhorse. In the fall of 2020, he did some similar excellent questioning of Big Tech leaders over their censorship activities. Republicans had a Senate majority at the time and there was hope they might push through some legislation eliminating the immunity tech oligarchs enjoy from lawsuits.

Nothing ever came of it when the hearings were over. It seems when the TV cameras turn off, so does Ted. I’m glad he takes the lead to the extent he does, but seeing how good he can be, reminds you of all he doesn’t do.

So, there you have it. These hearings of the Senate Judiciary Committee have shown a judge either unwilling or unable to answer very reasonable questions about her record. You have some senators whose IQ seems to flirt with 70. Even the ones with a grasp on things seem ready to overlook basic constitutional rights or the need to put their rhetoric into actual practice. All in all, just another day at the office in a nation where the worst routinely rise to the top.