By John G. Malcolm | The Daily Signal
Sen. Elizabeth Warren, D-Mass., said such
questions demonstrate that the Republican Party has moved on from “racial dog
whistles and gone directly to racial sirens.”
Senate Judiciary Chairman Dick Durbin, D-Ill., said:
“Some of the people who are speaking the loudest about not choosing a black
woman have never voted for a black nominee.”
And a Senate wannabe, Pennsylvania state Rep. Malcolm
Kenyatta, also a Democrat, said:
“Racists are gonna racist.”
On the House side, Rep. Hank Johnson, D-Ga., said
Republican statements about Biden’s resort to identity politics for this
nomination were “the racist dog-whistle that everyone hears.”
Not to be outdone, Rep. Hakeem Jeffries, D-N.Y., chairman
of the Democratic Caucus, said:
“These people are phonies, and they continue to try to divide America by
engaging racially inflammatory and unnecessary rhetoric.”
No doubt this drumbeat will continue and grow louder as
the date of Jackson’s confirmation hearing in the Senate nears. To be sure,
Republican senators are going to have to be careful about how they approach
this nominee, but that doesn’t mean they should buy into that
narrative. Not. One. Bit.
Let’s recount a bit of confirmation history on how the
Democrats have treated minorities and women who were nominated to federal
judgeships by Republican presidents.
In March 1990, when he was chairman of the Senate
Judiciary Committee, Sen. Joe Biden. D-Del., voted
to confirm Clarence Thomas’ nomination to the U.S. Court of Appeals
for the D.C. Circuit, the court where Jackson now sits.
But during Thomas’ confirmation hearing, and somewhat
bizarrely since he had not been nominated to the Supreme Court, Biden warned
Thomas that in his opinion, different standards apply to Supreme Court nominees
than apply to lower court nominees. Biden stated:
[A] lower court judge cannot make law, though
a Supreme Court justice can make law. That’s why there are fundamentally
different tests that can be applied. … [A]s I view it, if you are going to faithfully
uphold your responsibilities as a lower court judge, you are bound by those
Supreme Court decisions. If you’re on the Supreme Court, you are not bound at
all by those decisions. … So I want the record to reflect … that there is a
fundamental distinction between what is required of and should be sought of a
circuit court judge and a district court judge and a Supreme Court judge.
And sure enough, a year and a half later, in October
1991, Biden voted against confirming
Thomas to the Supreme Court, along with 46 other Senate Democrats. Thomas
ultimately was confirmed, making him only the second African American to serve
on the high court.
In 2003, Biden voted twice
to filibuster the nomination of Judge Janice Rogers Brown to the D.C. Circuit
at a time when she was considered a possible replacement for Supreme Court
Justice Sandra Day O’Connor.
Brown was the
granddaughter and daughter of sharecroppers who rose from poverty in rural
Alabama during the segregation era to put herself through law school as a
working single mother. She eventually was appointed to the California Supreme
Court.
When Brown was prominently
mentioned as a potential replacement for O’Connor, Biden went on TV as a
senator and said:
“I can assure you that would be a very, very, very difficult fight and she
probably would be filibustered.”
Since the Senate filibuster still existed for judicial
nominees at that time, this was likely the death knell to any hope Brown might
have had to be nominated to the Supreme Court. Of course, had she been
nominated and confirmed, Brown would have been the first African American woman
to serve on the Supreme Court, something that President Biden now says is
“long overdue.”
In 2003, Biden voted six
times (see here, here, here, here, here,
and here)
to filibuster the nomination of Miguel Estrada to the D.C. Circuit, a tactic
that ultimately succeeded in killing his
nomination. Many Democrats who are still in the Senate joined Biden in each of
these votes.
Estrada would have been the first Hispanic to join the
D.C. Circuit. According to internal strategy memos, the Democrats viewed him as
“especially dangerous” because “he is Latino, and the White House seems to be
grooming him for a Supreme Court appointment.”
The Democrats clearly did not want a Republican president
appointing the first Hispanic to the Supreme Court.
More recently, President Donald Trump appointed women to
seven of the 12 circuit courts. He also appointed the first Asian Americans
ever to serve on the 5th and 6th Circuits.
Then-Senate Minority Leader Chuck Schumer and the
Democrats voted to filibuster every one of those Trump nominees and then voted
against their confirmation.
All told, Schumer voted against
20 of the 21 women
and minorities nominated by Trump to federal appellate court positions
(congratulations to Amy St. Eve on being the sole exception).
What about then-Sen. Kamala Harris? The California
Democrat didn’t vote on seven nominees and voted against 13 of the remaining
14.
Dick Durbin? The Illinois Democrat voted against 17 of
the 21. Elizabeth Warren? The Massachusetts Democrat didn’t vote on five
nominees and voted against 15 of the remaining 16.
The record of
other Senate Democrats wasn’t much better (and in some cases, it was
worse).
Republicans who are accused of being racists and
misogynists when it comes to questioning Jackson in the run-up to and during
her Senate confirmation hearing should not hesitate to recount this history.
The sound you hear may be racial dog whistles, but you
should look carefully to see who is doing the blowing.
