THURSDAY, APRIL 14, 2022
CNN, uncomprehending: Commentary on the Jackson confirmation hearings was just pitifully bad.
It was largely composed of embellishment along with the reading of script. It was Storyline all the way down.
For ourselves, we were disappointed in Jackson's widely lauded performance. We felt she kept refusing to answer some perfectly straightforward questions—questions which deserved a simple reply.
That said, the absurdity of the tribal punditry was in no way Jackson's fault. Consider the huffing and puffing on CNN after Jackson had been confirmed.
The huffing and puffing came from the perpetually offended Laura Coates. It would be hard to offer a less informative bit of punditry than the punditry offered here:
COATES (4/7/22): Why on earth, how can it be that we have gone from a time when the very first woman to be a Supreme Court Justice—talking about Sandra Day O'Connor—was, I think, 99-0.
How it can be that somebody who was as qualified as Judge Ketanji Brown Jackson is having to scrape by, and hope for the kindness of Republican strangers, to tally onto the already unanimous Democratic vote?
That tells you a lot about where we are in this country. And I hope that members of Congress, when they're wondering why the American people sometimes question whether the Supreme Court is a political extension of the legislative branch, I hope they look to themselves and can identify and explain to their constituents why this particular nominee would not have gotten a resounding yes.
But I hope their electorate will understand that, at the end of the day, without it, she still will be Justice Ketanji Brown Jackson. And I'm proud. Congratulations, Madam Justice!
Forget the unabashed cheerleading, a practice which now typifies cable punditry all across the dial. Focus instead on the silly question posed by the irate legal analyst as that passage began.
For starters, yes! Way back in September 1981, during President Reagan's first year, Justice O'Connor was indeed confirmed by a 99-0 vote. The leading authority on the matter offers a bit of background:
O'Connor's confirmation hearing before the Senate Judiciary Committee began on September 9, 1981. It was the first televised confirmation hearing for a Supreme Court justice. The confirmation hearing lasted three days and largely focused on the issue of abortion. When asked, O'Connor refused to telegraph her views on abortion, and she was careful not to leave the impression that she supported abortion rights. The Judiciary Committee approved O'Connor with seventeen votes in favor and one vote of present.
On September 21, O'Connor was confirmed by the U.S. Senate with a vote of 99–0. Only Senator Max Baucus of Montana was absent from the vote, and he sent O'Connor a copy of A River Runs Through It by way of apology.
In those days, the Judiciary Committee somehow managed to get by with only 18 senators posturing and bloviating during televised hearings instead of today's 22.
At any rate, that "one vote of present" in committee came from Jeremiah Denton (R-Alabama). According to the New York Times, Denton said that he had voted that way "because she had refused to criticize the 1973 Supreme Court decision that legalized abortion."
To a large extent, that battle about Roe v. Wade was the start of it all. One week ago today, CNN's Coates was shocked, shocked by the idea that someone as qualified as Jackson had only received three Republican votes.
Viewers might have been misled into thinking that there was something unusual or surprising about that. In truth, this pattern has obtained for some time. Below, you see the number of votes the last seven nominees have received from senators of the opposition party:
Votes from opposition party, Senate confirmations
Justice Alito (2006): 4
Justice Sotomayor (2009): 9
Justice Kagan (2010): 5
Justice Gorsuch (2017): 3
Justice Kavanaugh (2018): 1
Justice Barrett (2020): 0
Justice Jackson (2022): 3
When he was confirmed in 2005, Justice Roberts received 22 Democratic votes. That made him the last of the Mohicans as far as getting oppositions votes is concerned.
Even there, those Democratic votes partly represented a dying tradition, in which Democrats were still able to win Senate seats in states which were solid red.
Included in those 22 Democratic votes were three votes from the Dakotas, along with votes from such states as Arkansas (2), Louisiana (2), West Virginia (2), Nebraska and Montana. It's very hard, though not yet impossible, for Democrats to win Senate seats from those states today.
To appearances, Coates couldn't imagine why Judge Jackson got only three Republican votes. In fact, as it has become increasingly clear that the Supreme Court now functions as a political body, it has become harder and harder for nominees to attain opposition support.
You'd think that everyone would be familiar with that fact, but Coates was huffing and puffing this day, as she persistently does. In the prcess, cable viewers may have been misled about the way our rapidly failing systems actually work.
One last point:
During her uncomprehending statement, Coates was advancing the tribal script according to which no nominee has ever been more qualified than Judge Jackson—in which she may have been the most qualified nominee ever. This widely voiced claim allows our pitiful blue tribe to marinate even further in our imagined oppression.
Justice Thurgood Marshall was nominated and confirmed in 1967. Was Judge Jackson really more qualified than he was? Was she more qualified than Justice Earl Warren, who was governor of California when he was nominated and confirmed in 1953?
For that matter, was she more qualified than Justice Sotomayor? If so, in what way? Only a tribe caught in a type of moral panic would want to invest itself in such pointless invidious claims.
On CNN, the perpetually irate analyst Coates was cheerleading hard. She was also huffing and puffing in the tribally mandated ways.
For some reason, Coates was caught by surprise—seemed to be uncomprehending—when Jackson received only three Republican votes. In such ways, our "cable news" discourse slides towards the sea as embellishment and Storyline continue to conquer the land.
Interesting factlets: Despite his presence in a red state, Senator Graham voted to confirm Justice Sotomayor. One year later, he voted to confirm Justice Kagan.
Those days seem to be over for Senator Graham. Compare, contrast and explain.