The major political players enthusiastically promoting Judge Ketanji Brown Jackson for the Supreme Court — from President Joe Biden himself to veteran Democrats on the Senate Judiciary Committee to several liberal interest groups that have been around for decades — would like people to forget their history.
As chairman of the Senate Judiciary Committee, Biden presided over the hearings for Supreme Court nominees Robert Bork in 1987 and Clarence Thomas in 1991, both of which were circuses of vilification. The attacks on Thomas were especially personal and nasty, made even worse by their lack of credibility. Those episodes showcased the vicious tactics by which the modern Democratic Party has attempted to make the Supreme Court into a vehicle for its own policy preferences.
In 2003, when President George W. Bush was doing the nominating, Senate Democrats who found themselves in the minority launched an unprecedented wave of filibusters and threatened even more against circuit court nominees — sinking many nominations.
The logic behind the circuit court strategy was obvious: Circuit courts of appeals are directly below the Supreme Court, and justices can be expected to be drawn from their ranks. In fact, every new justice who has joined the court over the past 50 years came from a circuit court except for Sandra Day O’Connor, who had been a state appellate court judge, and Elena Kagan, who had not previously served as a judge. The D.C. Circuit, unofficially considered the second most prestigious court in the country, produced more justices than any other circuit over that span of time, not to mention the most prominent unsuccessful nominee to the high court: Bork.
It may not be surprising, then, that among the many Bush nominees who were opposed, none were on the receiving end of more aggressive attacks than two D.C. Circuit nominees: Miguel Estrada and Janice Rogers Brown. A leaked internal memo to Sen. Richard Durbin echoing the views of groups firmly ensconced on the Left, including People for the American Way, the National Abortion Rights Action League, and the Alliance for Justice, flagged Estrada “as especially dangerous because he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment. They want to hold Estrada off as long as possible.”
Indeed, Estrada would have become the first Hispanic judge on the D.C. Circuit, and at that time, no one of that background had ever served on the Supreme Court. Brown stood to be the second black woman to be appointed to the D.C. Circuit.
Estrada was subjected to seven cloture motions, the device by which senators can end a filibuster by placing a time limit on consideration of the nomination and forcing a vote on confirmation. All of them failed (see here, here, here, here, here, here, and here). Neither Biden nor any of the 10 Democrats still serving in the Senate today — including Judiciary Committee members Patrick Leahy, Dianne Feinstein, and Durbin — voted for cloture on any of those motions. In other words, they forced Estrada to remain in limbo for more than two years until he finally withdrew from the nomination process, an ordeal that incurred a great personal toll on him and his family.
Janice Rogers Brown would face a nearly two-year ordeal of her own. Like Estrada, she was filibustered in 2003, and her nomination was defeated after Democrats, including Biden and the same 10 current senators, voted against cloture. Bush renominated her in the following Congress, and Democrats resumed their mass filibuster strategy against circuit nominees, leading Republican Senate Majority Leader Bill Frist to propose reducing the supermajority requirement (60 votes) for cloture on nominations to a simple majority. With typical Beltway melodrama, this became known as the “nuclear option,” and Democrats responded by threatening to retaliate by obstructing normal Senate business as well.
The cataclysmic showdown was averted by a compromise engineered in 2005 by a group of senators from both parties called the “Gang of 14.” Their agreement included a commitment to vote to invoke cloture on Brown’s nomination, along with two other circuit court nominees Democrats had strongly opposed: William Pryor and Priscilla Owen. That permitted Brown’s nomination to go forward. Even after that agreement, most Democrats, including Biden and nine of the 10 Democratic senators serving today, still voted against cloture.
Sen. Tom Carper was the only exception for that vote. But when it came time to vote on Brown’s nomination, he joined nearly all of his fellow Democrats in opposing Brown. Of the 56 votes in favor of confirmation, 55 were from Republicans, who were joined by only one Democrat.
Soon after Brown’s confirmation, O’Connor announced her retirement, and the freshly minted D.C. Circuit judge was on the short list for the Supreme Court. Biden, signaling how the Democrats would react to her potential elevation, singled out Brown among prospective nominees to the high court as “a very, very, very difficult fight and she probably would be filibustered.”
The Congressional Black Caucus came out vehemently and unanimously against Brown during her circuit nomination, writing to the Senate Judiciary Committee in 2003 that her nomination “ensures only that [Bush] remains faithful to his campaign promise to nominate men and women in the mold of Supreme Court Justices Clarence Thomas and Antonin Scalia. We are appalled.”
In 2005, members of the CBC walked from the House chamber to the other side of the Capitol building to stand in the Senate chamber in protest during Brown’s roll call vote. They waged no such protest against Pryor and Owen for their confirmations.
By stark contrast, the CBC supported Ketanji Brown Jackson’s nomination as strongly as it had opposed Brown’s two decades earlier. Its chair, Rep. Joyce Beatty, testified before the Judiciary Committee that “our power is our unity, and we embrace and endorse her 100%.” That “unity” is illusory, considering that today’s CBC excludes black Republican members of Congress.
It should come as no surprise that the same pattern of obstruction and dishonesty is visible in the far-left organizations, which have come to be known as dark money groups that drive the agenda of Democratic lawmakers.
PFAW, which during the Bork nomination pioneered the use of a television ad campaign as a tool to smear Supreme Court nominees, helped spearhead the opposition to Thomas. They were joined by other components of the anti-Bork coalition, including NARAL, the Alliance for Justice, and the Leadership Conference on Civil Rights.
The same groups lambasted Brown during her circuit nomination as “unfit” (PFAW), deserving of their “strenuous opposition” (NARAL), “the best evidence of the need for a filibuster” (Alliance for Justice), and “a radical judge” (Leadership Conference). Never mind that Brown, then a sitting justice on the California Supreme Court, had won her previous retention election with 76% of the vote, higher than that of any of her colleagues, and had written the most majority opinions during the previous year.
Yet these same groups have been intensely supportive of Jackson. Their respective heads were “overjoyed by this nomination” (PFAW), praising “a phenomenal and overdue milestone” (NARAL) and a nomination that “represents a brighter future for decades to come” (Alliance for Justice).
Wade Henderson, who ran the Leadership Conference during both nominations, testified at Jackson’s hearing, “When confirmed, Judge Jackson will make history as the first black woman to serve on the Supreme Court … We have waited far too long for this day, but we are nonetheless overjoyed that it has finally arrived.”
This is the same Henderson who, not too long ago, vehemently opposed the nomination of Janice Rogers Brown, writing to the Judiciary Committee, appearing in media interviews, and even running a television ad against her confirmation.
The hubris and cynicism on the Left do not end with the nomination process, either. It extends to many years of seeking flimsy pretexts to call for Justice Thomas’s resignation or even to impeach him by those who are either unaware of or unashamed of the lack of credibility of the original attacks that almost sank his nomination. More recently, the attacks have come in the form of trying to distort well-established principles of recusal to impugn Thomas’s character, with dozens of Democratic members of Congress joining the pile-on.
Biden and many of his fellow Democrats routinely demagogue their opponents with irresponsible, historically ill-informed invocations of Jim Crow. They profess their aspirations for diversity in government in one breath, only to undermine their words by applying a double standard of especially aggressive tactics against people of color nominated from the other side of the aisle. When Republican presidents nominated racial minorities who were potential pathbreakers, such as Estrada and Brown, they repeatedly found their efforts hitting a Democratic buzzsaw.
Democrats want the public to forget this ugly history. But there are many of us who still remember, and we will never stop reminding the public that when Democrats say they want to create a federal bench that looks like America, they’re referring only to the part of America that shares their political ideology.
Frank J. Scaturro is Vice-President and Senior Counsel of the Judicial Crisis Network and a former Counsel for the Constitution to the Senate Judiciary Committee, in which capacity he worked on the nominations of Chief Justice John Roberts and Associate Justice Samuel Alito to the Supreme Court and the nomination of Judge Janice Rogers Brown to the D.C. Circuit.
