Ketanji Brown Jackson appears ‘on track’ for confirmation, senators say

Jackson’s confirmation will not be overwhelmingly bipartisan, and the top Senate Republican vote-counter, Minority Whip John Thune (R-S.D.), predicted no more than three GOP votes in her favor. But leaders of both parties agreed the long and often tense interrogation did not alter the fundamental dynamics around the nomination.

The Senate is split 50-50, with Democrats holding the majority due to the tiebreaking vote of Vice President Harris. Few senators have officially announced how they intend to vote, but no Democrat has aired serious qualms about Jackson, and several Republicans have indicated that they are seriously considering voting for her.

“I think people go into it … with an open mind, but generally, these nominees, their performance and examination of the record and everything else kind of leads them to land in the same place they were probably going to be anyway,” Thune said of the hearings. “So I don’t think it changed a lot of minds.”

Senate Majority Leader Charles E. Schumer (D-N.Y.) also declared Jackson’s nomination to be “on track” Thursday. The Senate Judiciary Committee is scheduled to report the nomination on April 4, with floor action expected later that week.

“It’s not easy to endure three days of testimony with the entire nation watching, but Judge Jackson has erased any doubt that she is brilliant, she is beloved, and she belongs — unquestionably belongs­ — on the United States Supreme Court,” Schumer said.

That said, her confirmation is almost certain to be much narrower than other pathbreaking nominees — a reflection of the increasingly polarized nature of the Senate and especially judicial confirmations. Thurgood Marshall, the first Black member of the court, was confirmed on a 69-to-11 vote in 1967; Sandra Day O’Connor, the court’s first woman, was confirmed on a 99-to-0 vote in 1981; and Sonia Sotomayor, the first justice of Latino descent, was confirmed 68 to 31 in 2009.

Minority Leader Mitch McConnell (R-Ky.) went to the Senate floor just a few hours after the hearings gaveled closed to announce his opposition to Jackson’s confirmation — citing her refusal to publicly oppose the notion of expanding the Supreme Court, her lack of specificity in answering questions about her judicial philosophy and her sentencing record as a trial judge.

“President Biden said he would only nominate a judicial activist,” he said. “Unfortunately, we saw no reason to suspect he accidentally did the opposite.”

In fact, some of the answers McConnell referred to were not out of the bipartisan norm — Associate Justice Amy Coney Barrett gave a similar answer on court expansion in 2020 and Chief Justice John G. Roberts Jr., like Jackson, disclaimed any particular philosophy during his 2005 hearing. But McConnell’s firm position is likely to send a strong signal to several Republicans who are on the fence.

Three GOP senators — Susan M. Collins (Maine), Lindsey O. Graham (S.C.) and Lisa Murkowski (Alaska) — voted in favor of Jackson’s nomination to the U.S. Court of Appeals for the D.C. Circuit. Graham questioned Jackson aggressively during the hearings but would not tell reporters Thursday whether he had made a final decision. Collins and Murkowski, who each met privately with Jackson this month, said this week that they had not yet made their decisions.

Jackson allies believe a larger group of GOP senators could be in play — including Sen. Mitt Romney (R-Utah), who said he would give Jackson a fresh look after opposing her circuit court confirmation, and a clutch of retiring senators including Roy Blunt (R-Mo.) and Rob Portman (R-Ohio), who could be moved by the historic nature of Jackson’s nomination. None have announced a final decision.

Meanwhile, Democrats have brushed off some of the nastiest attacks that Jackson faced in the hearing room, including accusations that she has been soft on those charged with child pornography offenses. Sen. Joe Manchin III (D-W.Va.), who has played a role in tanking some of Biden’s most controversial nominations, told reporters this week that he simply did not trust Sen. Josh Hawley (R-Mo.), the young senator who first launched the attack.

Hawley and Jackson’s other Republican opponents have only one remaining point of political leverage — boycotting the Senate Judiciary Committee meetings that will take place in the coming weeks to report her nomination to the floor.

Under Senate rules, if all Republicans failed to attend meetings of the evenly split committee, there would be no quorum and thus no business could be conducted. It was a tactic successfully used in the Senate Banking Committee earlier this year to delay and ultimately force the withdrawal of Federal Reserve Board nominee Sarah Bloom Raskin.

But Sen. Charles E. Grassley (R-Iowa), the panel’s top Republican, has played down the prospects of a boycott for weeks, and several panel members said Thursday they had no intentions of engaging in the tactic — even amid a fight over sealed sentencing documents from Jackson’s tenure as a trial judge.

Sen. Thom Tillis (R-N.C.) said a boycott was “never, ever going to happen” and that he was personally satisfied that Republicans had enough documentation.

“Let me be clear,” he told reporters: There is “zero, nada, zip” chance of a boycott.

Asked about using a boycott to secure the reports, Hawley would not rule it out. But for the tactic to be successful, all Republicans — not just a few — would have to participate.

Although Republicans vowed not to block Jackson’s nomination indefinitely through a boycott, it remains unclear whether their opposition will force Democrats to take the unusual step of discharging her from committee. A tie vote on party lines would require such a move, breaking decades of precedent where the Judiciary Committee has sent Supreme Court nominations directly to the floor. Democrats, for instance, did so for Robert Bork in 1987 and Clarence Thomas in 1991, albeit with unfavorable recommendations.

The biggest threat to Jackson’s timely confirmation, in fact, now appears not to be politics but health: Several senators have been absent in recent weeks because of positive coronavirus tests and other reasons. Sen. Ben Ray Luján (D-N.M.) missed a month of votes earlier this year after suffering a stroke.

Depending on the ultimate vote count, and if more Democrats than Republicans are absent, Jackson’s confirmation could be delayed potentially for weeks. Democrats, for instance, had to indefinitely delay the confirmation of a key labor appointee this month due to absences.

“It’s day-to-day around here now, but I assume they’re going to have all hands on the deck when it comes time for the Supreme Court,” Thune said, “or be pretty confident that they’ve got a little cushion with a couple of our folks.”