by Nathan Warf

This post is the first in a series examining Tennessee politics currently in the news. Here, I’ll be looking at the recent confirmation hearings for Judge Ketanji Brown Jackson, President Biden’s nominee for the U.S. Supreme Court. I’ll focus on Tennessee Senator Marsha Blackburn’s performance as a member of the Senate Judiciary Committee, the body responsible for helping the Senate fulfill its constitutional “advice and consent” responsibility.

During the hearings, I appreciated Senator Ben Sasse’s comments about bringing cameras into the Supreme Court. He acknowledged that “transparency is a virtue” but argued that Americans ought to consider the consequences of using video cameras to facilitate that goal. Sasse continued, “A huge part of why this institution [Congress] doesn’t work well is because we have cameras everywhere. Cameras change human behavior.” He attributed a lot of the poor behavior of his fellow senators to “people mugging for short-term camera opportunities.”[1]

Both Democrats and Republicans are guilty of discarding reasoned discourse in favor of sound bites that will lead to cable news appearances. In recent decades, this has been especially true in confirmation hearings for Supreme Court nominees. Senator Blackburn’s conduct offered a revealing example of this practice.

During her opening statement on day one of the confirmation hearing, Blackburn outlined several topics she wished to pursue. First was education. Blackburn said that the “radical left” was waging an assault on parental rights by pushing a “progressive agenda” in public schools. Speaking of the private school where Jackson serves on the Board of Trustees, Blackburn asserted that Georgetown Day School teaches “kindergarteners that they can choose their gender and teaches them about so-called white privilege.” Blackburn said that Jackson’s “endorsement of this indoctrination causes one great concern when it comes to how [she] may rule on cases involving parental rights.” Concerning parental rights, Blackburn commented on “government overreach” regarding masks and lockdowns. None of the senator’s opening topics, all of them cultural war grievances, had anything to do with Jackson’s qualifications to serve on the Court.[2]

Blackburn then turned to the subject of crime. She said, “You once wrote that every judge has ‘personal hidden agendas’ that influence how they decide cases.”[3] That’s not what Judge Jackson wrote, though. In her Harvard undergraduate thesis, Jackson began a chapter:

If it can be argued that court officials in various jurisdictions sometimes act in a manner that pressures criminal defendants, and that the types of pressures that were identified in the previous chapter actually do occur, then it becomes necessary to examine the motivations ("hidden agendas," if you will) which arguably underlie these attempts to get the accused to waive their constitutional rights.[4]

Judge Jackson was not talking about “every judge”; indeed, she pointed out that judges “are the least active participants in the trial process.”[5] Instead, Jackson was talking about court actors more generally, including both defense attorneys and prosecutors. Both sides are motivated to accept plea bargains for a variety of reasons: to save time and effort, to avoid the uncertainties of a jury trial, and perhaps because they genuinely believe that plea bargaining is a just method to settle cases.[6]

Nonetheless, Sen. Blackburn twisted a phrase from its context, allowing her to ponder aloud about Judge Jackson’s potential “hidden agenda.” She asked, “Is it to let violent criminals, cop killers, and child predators back to the streets? Is it to restrict parental rights and expand government’s reach into our schools and private family decisions? Is it to support the radical left’s attempt to pack the Supreme Court?” Blackburn pushed her points further, accusing Jackson of the following:

You have praised the 1619 Project, which argues the U.S. is a fundamentally racist country, and you have made clear that you believe judges must consider critical race theory when deciding how to sentence criminal defendants. Is it your personal hidden agenda to incorporate critical race theory into our legal system?[7]

Blackburn’s comment contained several misrepresentations. Judicial nominees complete a questionnaire that is submitted to the Senate Judiciary Committee. Judge Jackson’s completed questionnaire runs 149 pages.[8] Question 12(a) required Judge Jackson to submit a copy of all published writings and public statements. This file is 2,086 pages. The “1619 Project” is only mentioned in one speech, an MLK Day lecture delivered at the University of Michigan Law School.[9] The reference comes in a section of the lecture where Judge Brown talked about black women leaders and their “unshakable commitment to the ideals of American society.” Quoting Professor Derrick Bell, Jackson said that “for many of these women, the Civil Rights Movement was ‘not just one isolated event after another, but a series of events tied to one idea’: the betterment of black people and society.” Jackson continued, “This same theme resounds throughout ‘1619,’ the popular new historical accounting published by the NYTimes.”

The 1619 Project has certainly been the source of great controversy, with detractors including several respected historians. Regardless of the overall merits of the project, Judge Jackson’s point here shouldn’t be controversial. The America of 1776 was not perfect, yet the country has made tremendous strides in expanding civil rights through the hard work and sacrifice of civil rights leaders, including the black women she profiled in her speech.[10]           

Likewise, “critical race theory” is also mentioned in only one speech, a lunch talk delivered at the University of Chicago Law School.[11] Contrary to Blackburn’s assertion, Jackson did not say that “judges must consider critical race theory when deciding how to sentence criminal defendants.” Instead, she said that “sentencing is just plain interesting on an intellectual level, in part because it melds together myriad types of law—criminal law, of course, but also administrative law, constitutional law, critical race theory, negotiations, and to some extent, even contracts.” She went on to explain that “sentencing policy implicates and intersects with various other intellectual disciplines as well, including philosophy, psychology, history, statistics, economics, and politics.”[12] Far from saying what judges must do when sentencing defendants, Jackson was simply talking about the many considerations that come into play when establishing sentencing policy, the preserve of legislative bodies, not courts.[13] Blackburn’s claim that Judge Jackson has a “hidden agenda” was based on misrepresentations.

Also in her opening statement, Blackburn complained that Jackson had “used [her] time and talent, not to serve our veterans or other vulnerable groups, but to provide free legal services to help terrorists.”[14] This claim was also meritless. Before becoming a judge, Jackson served as a federal public defender. As part of this role, she was assigned to represent several detainees at Guantanamo Bay. As Jackson explained, representing the criminally accused, including suspected terrorists, is “a service. … [It is] standing up for the constitutional value of representation.”[15] Defense attorneys play a vital role in our system of justice. Blackburn’s attack on Jackson’s service as a public defender is but one of many instances where she revealed either a misunderstanding of the American legal system or a lack of respect for its tenets. Such ignorance or dismissiveness is alarming from a U.S. Senator with responsibilities on the judiciary committee.[16]

A charitable interpretation of Senator Blackburn’s performance would conclude that she is just negligent. Instead of preparing for a task as important as questioning a Supreme Court nominee, she relied on staffers who cobbled together comments from Judge Jackson that are stripped of context. A more cynical interpretation would conclude that Senator Blackburn is guilty of bad faith attacks on Judge Jackson, that she intentionally misrepresented the record to score cheap political points. The two interpretations are not mutually exclusive.

Admittedly, Senator Blackburn is not alone in acting beneath her high office. Any effort, however, to excuse that behavior by pointing to similar bad behavior on the other side of the Senate aisle is missing the point. Tennesseans ought to expect more of our public servants.