The vote was supposed to come much earlier but there was a medical emergency on Alex Padilla’s flight last night from California, forcing it to turn around and return to LAX. He flew out this morning instead.
And unfortunately for Democrats, they needed his vote. A 50/50 Senate means an 11/11 split on the Judiciary Committee and the Republicans on that Committee weren’t budging in their opposition to Jackson.
News — In a party-line vote, Senate Judiciary Committee deadlocks 11-11 on the nomination of Ketanji Brown Jackson to SCOTUS.
Next up: A vote tonight to discharge the nomination by full Senate. Simple majority is needed
Cloture vote: Thursday
Confirmation: Thursday or Friday
— Manu Raju (@mkraju) April 4, 2022
This was the first time in more than 30 years that the Committee deadlocked on a SCOTUS nomination. The last time it happened: 1991, when the Committee was chaired by a senator named Joe Biden and the nominee was Clarence Thomas. The fact that only the Court’s two black nominees since 1990 failed to receive the Committee’s recommendation is destined to figure in the liberal reaction to this outcome:
Angry Whoopi Goldbergs fumes at Republicans who will vote ‘no’ for Judge Jackson’s nomination. Suggests it’s all about racism. “Just say, ‘I don’t trust a black woman to do the job,'” she said. “We all know what it is. We know what it is. We recognize it. We’re used to this…” pic.twitter.com/bDPhwIf8Vi
— Nicholas Fondacaro (@NickFondacaro) April 4, 2022
The GOP could have followed the other party’s precedent by boycotting the Committee proceedings, as Democrats did when they skipped the vote for Amy Coney Barrett in 2020. That would have allowed the Committee to recommend Jackson, 11-0, but it also would have been seen as disrespectful of the first black woman justice. Dems boycotted Barrett because they objected to the nomination being rammed through so close to the election. Republicans would have had no similar procedural excuse to boycott. Forced to choose between that option and the option of the committee deadlocking, they gave Jackson the courtesy of their votes.
A deadlock doesn’t mean that the nomination can’t proceed. (Obviously, since Thomas has been a justice for 30 years.) It just means that Schumer has to jump through a few extra procedural hoops in bringing Jackson’s nomination to the floor for a vote of the full Senate. And since Joe Manchin and Susan Collins have already said they’ll support her, confirmation is a done deal. The only suspense has to do with whether Lisa Murkowski and Mitt Romney will vote yes too. Romney may be intrigued by Jackson’s rulings on religious liberty:
In deliberating on Jackson’s nomination, Romney has made it clear he is unpersuaded by arguments that have swayed his fellow Republicans. Many GOP senators have coalesced behind the view that Jackson, as a trial court judge, was too lenient in sentencing child pornography offenders, although experts have said Jackson’s record was in line with the norm. Romney has said GOP senators’ aggressive questions on that subject were “off course” and that there was “no ‘there’ there.”…
The BYU law professors, in their letter, cited one of Jackson’s decisions as a district court judge — Tyson v. Brennan — in which she sided with a Christian plaintiff who sued after he was reprimanded for playing gospel music at work, while secular music was allowed. One of the professors who signed the letter was the school’s Marion G. Romney professor of law, a position named after a cousin of the senator’s.
“At the confirmation hearings on her nomination as a federal appellate judge, she declared her support for the freedom of religion, calling it a ‘foundational tenet of our entire government,’” the professors added.
McConnell is reportedly lobbying the GOP caucus to vote no despite Collins’s yes vote being decisive. I don’t understand the political calculation there given that Jackson is destined to be confirmed, making this something of a “free play” for Republicans to earn some goodwill among black voters who either voted for Trump in 2020 or are considering voting Republican this year. According to one McConnell advisor, it’s about crime:
Scott Jennings, a Kentucky-based GOP strategist who has advised McConnell’s past campaigns, said Biden’s nomination of Jackson “fits into the overall [argument that] the Democrats are soft on crime and criminals, and Republicans aren’t.”
“That is going to be a big narrative in this campaign. You’ve already seen that,” he added. “Anytime you can throw another piece of evidence on that, I do think it furthers that narrative.”
Republican aides say Jackson’s record in sentencing child pornography offenders will be a tough one for vulnerable Democrats such as Sens. Mark Kelly (Ariz.), Maggie Hassan (N.H.), Raphael Warnock (Ga.) and Catherine Cortez Masto (Nev.) to defend on the campaign trail later this year.
Okay, but (a) we already know the final vote will be bipartisan in her favor and (b) there’s a nonzero chance that the 2012 GOP nominee for president will be voting for her as well, furthering muddying the partisan waters. I would think McConnell might want to defer to Romney here: If he votes yes, let any others in the caucus who may be considering voting yes do so as well. Republicans then get to say they helped confirm the first black woman justice and can use their support for KBJ to bludgeon Democrats whenever the next Republican nominee comes up for a floor vote and inevitably gets somewhere between one and zero Democratic votes.
He won’t admit it but I suspect McConnell is worried about alienating the fringier parts of the base if too many Republicans support Jackson. Josh Hawley’s bogus attacks on Jackson as soft on pedophilia are tailor-made for QAnoners and the Q-adjacent, which isn’t a small number. It’s one thing to vote for a generic Democrat, it’s another thing — an unforgivable thing — to vote for someone like that.
Here’s Lindsey Graham from this morning’s Committee hearing with a comment for which he’s gotten a bit of a bad rap. Some thought he was saying here that if Republicans controlled the Senate, Biden’s nominee wouldn’t have gotten a hearing, i.e. another Merrick Garland situation. That’s not how I understand him. I think he means that a Republican Senate would have demanded a more centrist nominee from Biden, an allusion to Graham’s support for Judge Michelle Childs for this seat. Graham frankly said last month that he thought Childs would have gotten 60+ votes, which isn’t the sort of thing you say if you’re looking to roadblock Democratic justices as a rule.
Sen. Lindsey Graham (R-SC): “If we were in charge, [Judge Jackson] would not have been before this committee.” pic.twitter.com/3C4gvvJaOT
— The Recount (@therecount) April 4, 2022