Op-Ed: The sickening Republican smear campaign against Ketanji Brown Jackson

The fight over the nomination of Judge Ketanji Brown Jackson for the Supreme Court is powerful evidence that our political system is broken like never before. There is no plausible basis for opposing Jackson, who has impeccable qualifications and about whom nothing controversial has been discovered.

Yet, her confirmation hearings, which begin on Monday are likely to be highly contentious, and she is unlikely to get the votes of more than a Republican senator or two. Lacking any credible basis for opposing her, Republicans are turning to unfair smears.

In the world of law, credentials don’t get better than hers. A graduate of Harvard College and Harvard Law School, she clerked for judges in the federal district court and the federal court of appeals, as well as Justice Stephen G. Breyer in the United States Supreme Court. She had extensive practice experience in a variety of settings and has been a federal judge since 2013, in the federal district court and the U.S. Court of Appeals. Lawyers who have appeared before her, liberal and conservative, are effusive in their praise of her as a judge.

Lacking any grounds for opposition, Republicans are resorting to slime. Some are criticizing her because she worked as a public defender, including representing a Guantanamo detainee. But in our constitutional system, every criminal defendant is entitled to an attorney, and lawyers who perform this role are fulfilling the most noble goals of the legal profession. That Jackson will be the first public defender to be a Supreme Court justice should be celebrated, not attacked.

Missouri Sen. Josh Hawley is stooping even lower. He criticizes an article she wrote as a law student and has said that when she was a federal judge there were seven child pornography cases where she gave a sentence less than the Department of Justice recommended. But as the White House has pointed out, in five of those cases, Judge Jackson imposed the sentences that were the same as or greater than what the United States probation office recommended.

Hawley criticizes statements she made when she was a member of the United States Sentencing Commission but omits that the commission was bipartisan and voted unanimously to modify the recommended sentences for possession of child pornography, where there was no proof that the person was involved in producing or trafficking child pornography.

Kyle Martinsen, of the Republican National Committee, emailed reporters that Jackson has a “pattern of advocating for terrorists AND child predators. What other criminals is Ketanji Brown Jackson an advocate for?” Senate Minority Leader Mitch McConnell said, “Her supporters look at her résumé and deduce a special empathy for criminals.”

Have they no shame? Representing criminal defendants or Guantanamo detainees reflects a desire to uphold the Constitution, not “special empathy for criminals.” One cannot help but wonder whether Jackson being a Black woman is fueling this “soft on crime” attack.

It was not that long ago that impeccably qualified Supreme Court nominees were easily confirmed with bipartisan support. In 1993, liberal Ruth Bader Ginsburg was confirmed by a vote of 96-3 and seven years earlier, conservative Antonin Scalia was unanimously confirmed.

What has changed? Republicans may see this as “payback” for the Democratic opposition to President Trump’s nominees for the Supreme Court. Brett M. Kavanaugh faced serious allegations of sexual assault from Christine Blasey Ford. Amy Coney Barrett’s confirmation was rammed through less than six weeks after Justice Ginsburg died — even though the same Republicans refused to allow a vote on Merrick Garland, President Obama’s nominee to replace Scalia, on the grounds that the Senate should not consider a nominee in a presidential election year.

But what is really going on is that Republicans believe that they can appeal to their political base by opposing any Democratic pick for the Supreme Court. And they are willing to resort to whatever it takes.

I don’t know the way out of this toxic mess. Perhaps what’s important to remember is that so long as all the Democrats vote in favor of Jackson, she will be confirmed. Republicans can make a lot of noise and throw around dirt, but they don’t have the votes to block her. Nominees are rarely defeated when the president and the Senate are of the same political party.

Still, the Republicans are sure to make this week’s hearings a spectacle, attacking a nominee who deserves full bipartisan support.

Erwin Chemerinsky is dean of the UC Berkeley School of Law and a contributing writer to Opinion. He is the author most recently of “Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights.”