Law Class – The American Conservative
Two weak aristocracies clash at Ketanji Brown Jackson’s confirmation hearing.
US Supreme Court nominee Justice Ketanji Brown Jackson testifies during her confirmation hearing before the Senate Judiciary Committee in the Hart Senate Office Building on Capitol Hill. (Photo by Win McNamee/Getty Images)
Yes, as promised, she would be the first black woman to be appointed to the Supreme Court. But in many ways, Judge Ketanji Brown Jackson is completely unremarkable in her remarkable manner. She is a full member of the American aristocracy and is being considered for one of the highest offices of this class.
In the 19th century, Alexis de Tocqueville observed that, for all their passion for equality, the lawyers in American democracy still embodied a remnant of an old-world aristocratic heritage. Scum that many attorneys are, that is true to a degree today, especially in the federal judiciary, and to that extent Jackson is as much a part of that noble class and representative of that tradition as anyone. She has served on the Supreme Court, served as a judge on the Court of Appeals, and has also served in many capacities in our federal justice system. It’s an isolated and rare world. She attended Harvard for both her undergraduate and law degrees. her husband, dr. Patrick G. Jackson, apparently from a famous Boston family, a WASP and proverbial Brahman.
Headlines surrounding Jackson’s confirmation trial have been dominated by allegations by Missouri Senator Josh Hawley that she has been lenient in cases involving possession and viewing of child pornography. Senator Hawley introduced himself made his case public on Twitterexpanded it during televised Senate Judiciary Committee hearings and summarized it in a Fox News opinion piece. As the hearings continue, the issues and questions surrounding sentencing and Jackson’s discretionary powers in seven specific child pornography cases raised by Hawley still demand responses from Congress and our justice system as a whole, as well as from Jackson.
Defense attorneys for Jackson have claimed that she was right in finding sentencing guidelines and prosecutors’ claims in various cases to be excessive or skewed to the extreme, either due to the merits of a more therapeutic or non-punitive approach to criminal justice — one that encompasses what you and I and Sen. Hawley might call it “gentle crime handling” — or because such adjustments are common practice and simply the norm in the current interaction of prosecutors, defense attorneys, and Congressional guidelines for sentencing in such cases. Even some conservative figures such as National Reviewby Andrew C McCarthyhave defended Jackson along this latter technical line, suggesting that sentencing guidelines were inadequate for the complexity of many child pornography cases, and describing Hawley’s prosecution line as “slander” and “baseless to the point of demagoguery.”
What’s wrong with a little demagogy? Senator Hawley, after all, represents the people of Missouri. And Democrats have had a positive bacchanalia in every Supreme Court nomination process since at least what the judge himself called the “high-tech lynch” of Clarence Thomas. There’s certainly no reason to lie, to engage in actual slander, as Democratic senators did against Judge Brett Kavanaugh, but Republican senators should at least try, given the chance, to create the kind of spectacle that reflects the very nature of Democratic Politics Matters They are serious about stopping a bad candidate. It shouldn’t be hard to tell, as was the case at these hearings, whether most Republican members on the committee think Jackson is a bad candidate or not. Why was it all so boring?
The justices of the Supreme Court are the high priests of our civil religion, elected for life, the apparent custodians and tamers of the long arc of history. Nominations are a religious festival and the Democrats take it seriously and know how to celebrate it. They understand what’s at stake, because the court has won progressivism’s greatest victories in the last few decades. Conservatives may have the Federalist Society, but we also need local citizen shoes. Where are our costumed women, our activist agitators, our children screaming “shame”? At least act like you care what your constituents think, senators, instead of performing the Elder Statesman for an audience in the Acela Corridor. Jackson has denied having a legal philosophy by which to judge it and has suggested having a methodology instead. move public opinion. Arouse some emotions. They’ll say you slung mud even if you didn’t. You might as well enjoy yourself and actually try to hit the target.
Until the 17th Amendment, Article 1, Section 3 of the Constitution applied as written: “The United States Senate is composed of two senators from each state, elected by the legislature for six-year terms; and every senator has one vote.” But while populism republics started off from time to time, we changed that in 1913. At one point, to address a genuine failure to put theory into practice, the directly elected senators might have given the people more say in the federal government. But today, in practice, the 17th Amendment has made the Senate as dependent on campaign funds and thus as grossly partisan and committed to special interests as the House of Representatives.
federalist 62 states that because of the Senate as originally conceived, “no law or resolution can now be passed without the consent first of a majority of the people and then of a majority of the states.” Just as the House of Representatives represented the people, the senators guaranteed the state governments’ ability to act in shaping federal policy. In addition, their six-year terms provided continuity for this policy; That is, they helped coordinate government policy over the long term, as bureaucrats in executive agencies do today—all while being truly representative, working on behalf of state governments and, through state electoral politics, on behalf of the people.
Either conservatives should recognize and accept that the US Senate is as much a circus as the House of Representatives, or they should repeal the 17th amendment. Under the direct popular election system introduced by this amendment, US senators and federal judges do not address each other in committee hearings as their peers, but rather as tribunes of the people, speaking to optimates. But if senators were again appointed by the state legislatures, the Senate would be a body representing state sovereignty and could be a truly aristocratic counterbalance to the bank nobility. Then nominees’ hearings could indeed be the kind of grand and celebratory occasions where demagoguery has no place, and senators could actually be senior statesmen rather than just playing the part for cameras.
For now, though, we can expect these judicial hearings, nominated after nominee, to continue to be an oddly chaotic mix of politics high and low, spreading far more heat than light while members of the American aristocracy are questioned and forced to speak out to put itself appealing to our contradictory populars.