Republicans are rejecting the harshest tactics that could trap Ketanji Brown Jackson’s Supreme Court nomination indefinitely in the Senate Judiciary Committee — though they're wrestling with how hard to fight it.
While Democratic support alone is enough to get President Joe Biden’s high-court pick confirmed in the 50-50 Senate, unilateral GOP opposition would require the nation’s first Black female vice president to break a tie on the nation’s first Black female Supreme Court justice. Even a tied committee vote would force a procedural vote on the Senate floor, a rare occurrence for a high-court nominee.
“Certainly it would send a pretty bleak message to talented Black women,” said Sen. Sheldon Whitehouse (D-R.I.).
GOP senators say they will not support a boycott of Jackson’s committee vote, a strategy that helped scuttle the nomination of Biden’s Federal Reserve nominee Sarah Bloom Raskin. Because the Senate is tied and the standing rules of the Senate require a majority of committee members to attend a panel vote, a boycott would effectively stifle Jackson's nomination from moving forward.
Top Senate Judiciary Committee Republican Chuck Grassley of Iowa said “it’s never been a subject we’ve discussed. Everybody’s going to show up I’m sure, because they’ll all want to give their speech.” Sen. Lindsey Graham (R-S.C.) said: “I’m not into boycotting and that kind of stuff.”
But as an April 4 committee vote looms, it’s entirely possible that the evenly split panel deadlocks on her nomination, forcing Democrats to hold extra votes on the Senate floor. And Graham, the only Judiciary Committee Republican who supported her nomination to the D.C. Circuit Court, is giving his colleagues negative feedback about her nomination, according to other GOP senators.
“I haven’t asked any Republican not to vote for Judge Jackson. They can make their own mind up. I’ve been getting a lot of questions about the hearing,” Graham said in an interview. “I’ve been giving them my two cents worth.”
Senate Minority Leader Mitch McConnell told Republicans at a Thursday party lunch that Jackson’s nomination is “more controversial than expected,” according to people briefed on the lunch. It was a sign of hardening opposition from GOP leaders.
McConnell on Thursday afternoon announced he would oppose Jackson's nomination, citing that she "refuses to reject the fringe position that Democrats should try to pack the Supreme Court." He added that Jackson did not have a sufficient paper trail on constitutional issues and that he was concerned about her sentencing record.
And though Sen. Thom Tillis (R-N.C.) has helped advance some of Biden’s nominees in committee and then opposed them on the floor, he said he wants to keep his vote consistent — whether that's for or against Jackson — on a Supreme Court nominee: “It’s something that I think would be more difficult given the gravity of these nominations to do that. I think I’ll make a decision and stick with it.” He also said he would not abstain from a committee vote, a move that would give Democrats an effective majority.
Senate Republicans will hold over a committee vote Democrats want to move on March 28, kicking it to April 4. GOP senators said Thursday that a tie vote was likely, but are watching how Tillis and Sen. Ben Sasse (R-Neb.) will vote, given their comparatively warm style of questioning during the marathon hearings. Sasse also declined to sign a letter led by Sen. Ted Cruz (R-Texas) that requested more sentencing documents. His office did not comment for this story.
Democratic leadership will need to file a discharge petition, which only delays the process by four hours, if the committee deadlocks. That would likely set up a floor vote to discharge the nomination the same day as the Judiciary Committee markup. Senate Majority Leader Chuck Schumer could then take procedural steps on April 5 that would set Jackson for a final confirmation vote by the end of that week. Democrats are prepared to jump through those hoops, but said it would reflect poorly on the chamber.
If the Senate files that discharge petition on Jackson’s Supreme Court nomination, it would be the first time since 1853, when William Micou was nominated to the high court. The Senate, however, never confirmed Micou because he was nominated during a lame duck period.
Despite their likely lock on her confirmation, Republicans' complaints about Jackson are still irking their Democratic counterparts. Sen. Jon Tester (D-Mont.) described Jackson as “incredibly qualified” and accused Republicans of holding Jackson to a different standard than they hold their own judicial nominees, particularly in their accusations that she is soft on crime.
“Why is it a different standard? Because she’s nominated by a Democrat?” Tester asked. “Or because she’s a woman? Or because of the color of her skin? Look at what she’s accomplished. This woman is incredibly qualified and she’s proven that in these hearings. I think it just speaks to the fact that politics outweighs common sense.”
For now. Senate Minority Whip John Thune (R-S.D.) said Jackson has “a potential there for her to get a few” GOP votes.
“It’s a real consequential vote in someone’s public life, in their career. Normally people vote how they want to vote,” Thune said.
Republican Sens. Susan Collins of Maine, Lisa Murkowski of Alaska and Mitt Romney of Utah are the three Republicans viewed as the most likely to support Jackson’s nomination. Romney said Thursday morning that he would not comment until after he meets with her next week.
Several other Republicans say they are undecided and caught between supporting the first female Black Supreme Court nominee and supporting someone they expect to have a liberal voting record.
“I can tell a number of my colleagues are wrestling with this decision and I think that is both because of the historic nature of this nominee and because of her evident character, integrity and skill,” said Sen. Chris Coons (D-Del.). ”A number of them have said things like that but at the end the question is: what are you willing to do?”
In the event that all Republicans break against Jackson and the Senate has full attendance, the tie-breaking moment on a historic nomination would fall to Vice President Kamala Harris.
Democrats say it would be a shame if that happens.
“We’re going to get some GOP support,” said former Democratic Sen. Doug Jones, who is acting as Jackson’s sherpa. “I feel like we’re going to get some folks.”
