The asymmetric interest in Ketanji Brown Jackson’s nomination

On February 24, Russia invaded Ukraine. The next day, President Joe Biden nominated Judge Ketanji Brown Jackson to the US Supreme Court, fulfilling his promise to pick a Black woman to succeed Justice Stephen Breyer, who is retiring, by the end of the month. According to the New York Times, the White House decided to go ahead with the announcement even though the war was dominating the news cycle, hoping that the historic nature of the pick would cut through over the weekend, but Jackson was a relative afterthought on the Sunday shows two days later. Across five hours of TV for which transcripts are available, her name was mentioned just fifteen times.

Across the equivalent five hours this past weekend, Jackson’s name was mentioned ten times, even though Sunday was the eve of her confirmation hearing kicking off in the Senate. Turning to the story in the final minutes of Meet the Press, Chuck Todd described the hearing, in newspaper parlance, as an “A4 story” before asking whether the relative lack of attention will matter: “Does that, I guess, hurt President Biden politically because he doesn’t get sort of a little bit of an afterglow?” Similar questions were raised away from TV. Politico’s DC Playbook newsletter noted yesterday that the hearing “may well be below-the-fold news,” due not only to the war in Ukraine but also to a lack of political “suspense,” with “her confirmation all but assured and the balance of the court not in play.” (Jackson is a liberal like Breyer, and can be confirmed by Democratic votes alone.) The commentator Josh Barro wrote on Twitter that “it’s nice to have a round of SCOTUS confirmation hearings that I can safely ignore and are barely even news at all.”

Related: Stephen Breyer, the coming fight, and the bigger picture

In between times, the nomination has driven no little coverage, albeit usually below the top levels of the news cycle. We’ve seen much commentary around the path-breaking nature of Jackson’s ascent, as well as the more typical profiles and stories parsing her record, tracking endorsements, and putting old friends on the record. Numerous major outlets have also assessed Senate Republicans’ approach to her nomination, with several articles suggesting that they weren’t interested in making a circus out of the process given that Jackson’s confirmation is all but assured and the balance of the court is not in play. (Not that these factors seem to have diminished Beltway-media interest in the prospect of a bipartisan confirmation.) One Associated Press story led off with “lawyerly small talk” between Jackson and Josh Hawley—the Republican senator for Missouri who, lest we forget, voted not to certify the election victory of the president who nominated her—before noting that she was restoring a “collegial tone” to a process that had grown “increasingly embittered” under Trump.

The same story cautioned, much farther down, that “the good vibes could dissipate in the hearings” if “race moves to the forefront or if some Republicans make more personal arguments against her.” Re-enter Hawley, who last week pivoted from small talk to assailing Jackson for “letting child porn offenders off the hook for their appalling crimes” and claimed that her judicial record thus “endangers our children.” Hawley’s attack met with outraged rebuttals across the mainstream-media landscape, with everyone from the Washington Post’s Fact Checker (“Three Pinocchios”) to National Review’s Andrew C. McCarthy (“meritless to the point of demagoguery”) dismantling it, variously, as baseless and offensive. The academic and Substack writer Don Moynihan cast Hawley’s invocation of child abuse as a further example of “the QAnoning of our political discourse,” and urged media fact checkers not to tiptoe around that context. Speaking on MSNBC, the legal writer Elie Mystal accused Hawley of trying to get Jackson killed.

If it’s tempting to see Hawley’s attack as having changed the tone of Jackson’s confirmation fight and the media coverage thereof, that wouldn’t really be accurate. As the Post’s Seung Min Kim reported all the way back on March 3, top Republicans, while claiming to have an open mind, were “telegraphing” likely attack lines, suggesting that Jackson, a former public defender, is soft on crime, and muttering (with flagrant hypocrisy) that she is backed by “dark money” groups. And the right-wing media universe had already laid the groundwork for such attacks, including by invoking well-worn racist tropes. After Biden picked Jackson, Tucker Carlson said, on Fox News, that nominating a judge “because of how she looks” is tantamount to “defiling” the court; a few days later, he said that “Ketanji Brown Jackson” is a name “that even Joe Biden has trouble pronouncing,” and demanded to see her lsat score. Conservative politics and media, of course, are not separate universes these days. Hawley’s child-porn smear has gone viral on the right-wing internet. Sean Hannity invited him onto Fox to signal-boost it.

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It’s no surprise that, in the reality-based media, the war in Ukraine has drowned out Jackson’s nomination; news organizations are capable of covering multiple big stories at once, and have covered this one in all sorts of ways, but it’s harder for different stories to command consistent focus at the top levels of the news cycle, and it’s understandable that the war has taken priority here. Other reasons that have been cited for the relative lack of attention, however, have less merit. Biden’s “afterglow” should be a secondary concern, at best; whether Jackson has the votes to get on the court is more consequential, but a lack of suspense as to the answer doesn’t make her confirmation process unimportant. Indeed, the notion that the political stakes of this week’s hearing are low seems discordant with the fact that, to my eye at least, the buzziest stories around it have concerned disingenuous Republican attacks that are transparently designed to score political points. It’s important to debunk and contextualize claims like Hawley’s. But doing so also risks letting them set the broader media agenda.

After Jackson was nominated, Laura Ingraham, also of Fox, defined the stakes of stopping her confirmation as “saving the country that we love.” We needn’t pitch the actual stakes at a similar, if contrary, level of hyperbole. But we shouldn’t shrug and downplay them either. Jackson would be a historic appointment, not just as the first Black woman to serve on the court, but as the first former public defender. And—even if her confirmation won’t change the balance of the court, with its entrenched, six-justice conservative majority—her rulings will still be consequential, both immediately and in the longer term. As Fatima Goss Graves, the president of the National Women’s Law Center, noted on The Takeaway yesterday, “dissents really matter”—not only as “a reminder that there’s an alternative view from the direction the court is taking,” but because “the dissents of today become the majority opinions of tomorrow.”

Below, more on Ketanji Brown Jackson and the Supreme Court:

  • Marsha: Yesterday, on the opening day of Jackson’s confirmation hearing, Hawley reiterated his child-porn claim and Marsha Blackburn, the Republican senator for Tennessee, attacked Jackson on a range of issues, including her supposed past praise of the 1619 Project, a major New York Times Magazine initiative to center slavery in American history that is reviled by right-wingers. Charlie Savage, of the Times, fact-checked Blackburn’s claim, finding that Jackson gave a speech in 2020 during which she described the project’s central thesis as “provocative.”
  • Marshall: Adam Marshall, Lisa Zycherman, Annie Kapnick, Mohsin Mirza, Gillian Vernick, and Tiffany Wong, of the Reporters Committee for Freedom of the Press, reviewed Jackson’s record in cases relating to the First Amendment and Freedom of Information law. They found that Jackson authored dozens of foia-related opinions as a district court judge, demonstrating “a deference to agency exemption claims, especially in the national security context,” but also a willingness “to deny an agency summary judgment where government officials failed to provide sufficient evidence to keep records hidden from the public” and “to rule in favor of record requesters on non-exemption issues pertaining to the sufficiency of an agency’s search for records and record fee disputes.”
  • Clarence: This week’s other big story out of the Supreme Court has concerned Justice Clarence Thomas, who was hospitalized on Friday with “flulike symptoms.” The court waited until Sunday to disclose the news, stating that Thomas does not have covid and should be discharged soon. Thomas’s role on the court has come under critical scrutiny of late after The New Yorker and the Times published big investigative pieces examining the right-wing activism of his wife, Ginni, particularly in the run-up to the insurrection.


Other notable stories:

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Jon Allsop is a freelance journalist whose work has appeared in the New York Review of Books, Foreign Policy, and The Nation, among other outlets. He writes CJR’s newsletter The Media Today. Find him on Twitter @Jon_Allsop.

TOP IMAGE: NYTSCOTUS - WASHINGTON, DC - MARCH 21, 2022: Supreme Court nominee Judge Ketanji Brown Jackson is sworn in during her confirmation hearing before the Senate Judiciary Committee in the Capitol in Washington, D.C. on Monday, March 21, 2022. (Doug Mills/The New York Times) NYTCREDIT: Doug Mills/The New York Times