Some Republican senators are opposing Judge Ketanji Brown Jackson’s nomination to the U.S. Supreme Court on the spurious ground that her record of sentencing child pornographers will endanger children — if she is confirmed.
This argument is spurious for several reasons:
First, her sentences reflect the policies of Congress and the United States Sentencing Commission (on which she served).
These institutions intended judges to distinguish among cases based of the individuals and actions before them. There are obvious differences between a kid who merely watches child pornography in his parents’ basement; an adult who is the business of using children to make such videos; and the predator who actually reaches out to children for sex.
These differences should be reflected in different sentences, some below — and some above — the guidelines.
Second, justices don’t sentence and only rarely decide cases involving sentencing procedures and policies.
Those issues are generally decided by Congress and the sentencing commission, which can raise sentences if they choose to.
So even those who disagree with Judge Jackson’s sentences when she was a trial judge, should be evaluating her qualifications by reference to her record on matters more relevant to service on the high court.
So why did these Republican senators harp on her sentencing decisions?
Obviously to score political points with their base.
Child pornography is a hot button issue, and by describing in detail some of the revolting images that were involved in Judge Jackson’s cases, they were trying to portray her, the Democratic president who appointed her, and the Democratic senators who support her, as soft on crime, especially crime involving children.
But that’s what confirmation hearings have lately become — partisan political theater, rather than the serious efforts to advise and consent on judicial appointments, as the Framers of our Constitution intended.
There is plenty of fault to go around.
The Republicans abused their authority by denying Judge Merrick Garland a hearing.
Some Democratic senators acted outrageously during the confirmation hearings for judges, now justices, Brett Kavanagh and Amy Coney Barrett.
President Biden was wrong to limit his choice to Black women (though his ultimate choice of Judge Jackson was excellent). And majority leader Sen. Chuck Schumer, D-N.Y., was wrong to announce in advance of the nomination that the Senate would confirm whoever Biden nominated.
Both parties may think that they gain partisan advantage from the manner in which confirmation hearings are currently conducted, but the American public loses and the dignity of the Supreme Court is diminished.
My suggestion for the future is that the president and Congress should appoint a commission of 25 distinguished lawyers, former judges, academics, and other experts on a non-partisan basis.
Whenever there is a vacancy, this commission should recommend a list of the 25 most qualified potential nominees. Such a list, if fairly comprised, would be diverse.
The president would agree to select the nominee from this list.
It was from a list of this sort that some of the great justices of the past were selected.
Prominent among them was Justice Benjamin Cardozo.
When the great Oliver Wendell Holmes retired from the Supreme Court, President Herbert Hoover asked his attorney general to prepare a list of the most qualified lawyers in America.
Included on that list, but at the very bottom, was then New York Judge Benjamin Cardozo.
Hoover looked at the list and told the attorney general that it was a good list but that it was upside down: Cardozo should be at the top.
The attorney general responded that Cardozo was a Jew and there was already one Jew on the high court; that he was a Democrat; that he was from New York which already had one justice.
President Hoover reportedly responded that he would never take religion into account, that Cardozo was a judge for all the people of the United States, and that political party could not play a role.
He then appointed Cardozo who served with great distinction for several years.
Such a non-partisan approach would seem unthinkable today, but we should aspire to such a process. In the meantime, the Senate should confirm Judge Ketanji Brown Jackson, hopefully with some Republicans who are willing and able to judge her on her merits, regardless of partisan considerations.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law Emeritus at Harvard Law School and and the author most recently of "The Case for Color Blind Equality in the Age of Identity Politics," and "The Case for Vaccine Mandates," Hot Books (2021). Read more of Alan Dershowitz''s reports — Here.
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