Talking Points

It's Ketanji Brown Jackson's hearing, so what's Robert Bork doing here?

Does Ketanji Brown Jackson even need to be at her own Supreme Court confirmation hearing?

Maybe not. GOP senators on Monday were so hung up on their own tedious old obsessions that it was almost reasonable to believe that Justice Brett Kavanaugh or the late Robert Bork might be under consideration for the court's open seat.

"No one is going to inquire about your teenage dating habits," Sen. Ted Cruz (R-Texas) told Jackson, somehow aggressively passive-aggressively raising the specter of Kavanaugh's ugly 2018 confirmation battle. "No one is going to ask you, with mock severity, 'Do you like beer?'"

"'Nobody is going to vilify you the way Democrats have done to conservative judicial nominees," added Sen. Lindsey Graham (R-S.C.), alluding both to Bork's failed 1987 nomination and the sexual harassment controversy that attended Justice Clarence Thomas' 1991 confirmation.

If Jackson's hearing ends up being another polarizing spectacle, Graham suggested, it's not Republicans' fault. "What the hell happened? It wasn't us."

Graham and Cruz weren't being entirely honest that "no one" was going to unfairly attack Jackson. A few Republicans were happy to offer discredited allegations that Jackson is soft on child pornography. But unless ill health strikes one of the 50 senators who caucus with the Democratic Party, Jackson's confirmation to the high court is all but assured. So the point of Monday's parade of old controversies was mostly about posturing and ideological myth-building. 

And as with most myths, there's a certain amount of truth-fudging involved.

Robert Bork really was an extreme nominee — he'd opposed the Civil Rights Act as a bit of "unsurpassed ugliness" —  such that six Republicans joined Democrats in voting against his confirmation. Clarence Thomas probably harassed Anita Hill. And while we'll probably never know the whole truth about Christine Blasey Ford's old sexual assault allegation against Kavanaugh, it's evident the matter wasn't investigated as thoroughly as it should've been. 

For Republicans, the lesson of those affairs is not to be careful about nominating nominees whose ideological or personal habits might be unacceptable to the American people — it's that Democrats will do anything, no matter how underhanded, to keep conservatives from taking their rightful place on the court. (The narrative, of course, omits but also justifies the Republican Party's own extraordinary machinations when it comes to SCOTUS.) It's a story that must be repeated over and again, a powerful way to reinforce party tribalism and keep the "us versus them" dynamic running hot even when nothing much is at stake.

Which means that 50 years from now, Republicans might still be bringing up Bork, Thomas, and Kavanaugh whenever there's a new court nominee. It will be as relevant then as it is to Jackson's confirmation hearing — which is to say, not at all.