Schumer's task: Getting Jackson confirmed to Supreme Court

WASHINGTON — In coming weeks, Senate Majority Leader Chuck Schumer faces the delicate task of corralling a majority in the Senate to approve Judge Ketanji Brown Jackson’s nomination to the Supreme Court in what’s become a fractious confirmation process.

While Senate Judiciary Chairman Dick Durbin (D-Ill.) will run her confirmation hearings next week, Schumer, as the majority leader, must pull her across the goal line in the final Senate vote for his first high-court nominee named by a Democratic president.

Jackson’s confirmation is just the latest in a series of clashes of Democrats and Republicans over the direction of the courts, a battle in which Schumer and Senate Minority Leader Mitch McConnell (R-Ky.) have played important roles.

Standing outside the Capitol’s Senate chamber after meeting with Jackson earlier this month, Schumer hailed her as a Harvard Law School graduate, federal judge, the first Black woman chosen to be a justice and as someone who belongs on the Supreme Court.

"I think she deserves support from the other side of the aisle, and I hope that a good number of Republicans will vote for her, given who she is," Schumer said. "She reminds me in certain ways of Justice [Stephen] Breyer, who she clerked for."

Jackson faces a confirmation process that has become so partisan and contentious over the past two decades with spiraling reprisals, changes in rules and party-line voting that it makes big bipartisan support for any nominee more of a hope than a likelihood.

"There's no doubt that partisanship is part of it, but it's also been a process in which there's a lot of tit for tat. And I think that the stakes involved in these nominations have just increased for both sides," said Michael Gerhardt, a legal scholar at the University of North Carolina School of Law and a frequent adviser to Democrats.

"There are landmark opinions which are up for grabs. For example, the fate of Roe versus Wade," he said of the 1973 ruling that legalized abortion and faces its biggest challenge in decades in a case now before the Supreme Court’s 6-3 conservative majority.

"With its demise that seems to be imminent," Gerhardt said, "it just raises the stakes."

A voice in judicial selection

Schumer, 71, New York’s senior senator and a lifelong politician, ranks among the most prominent voices in the judicial selection wars, first as a Senate Judiciary Committee member for 18 years and since 2017 as Senate Democratic leader.

Jackson is Schumer’s 10th high-court nominee. Five conservative and two liberal nominees made it to the high court. Two didn’t — a Republican nominee who withdrew under her own party’s fire, and a Democratic candidate blocked by McConnell.

Schumer lands on the side of justices who believe in a living Constitution and interpreting it in context of the times. McConnell votes for originalists and textualists, who interpret Constitution provisions with literal readings of the text and with the framers’ intentions in mind.

Eliot Mincberg, a senior fellow of the liberal People for the American Way, recalled working with Schumer on confirmation battles. "He was very diligent; very, very, very, very intelligent, very committed," he said.

Jessica Anderson, president of the conservative grassroots group Heritage Action, has gone up against Schumer and called him an "ideologue on the left." But she added, "He's a very shrewd, political man."

Schumer came to Washington as a congressman in 1981 amid the conservative backlash against liberalism sparked by the election of President Ronald Reagan.

And he watched at a distance Senate battles over the Supreme Court nominations of Robert Bork and Clarence Thomas, both originalists and textualists, one defeated, the other confirmed, in battles that set the stage for increased polarization over the courts.

Part of that came from Reagan and the Federalist Society’s greater attention to the judicial philosophy of court nominees, said Thomas Jipping, an aide to former Sen. Orrin Hatch (R-Utah) and now a senior legal fellow at the conservative Heritage Foundation.

After winning his campaign for Senate in 1998 during the impeachment of President Bill Clinton, Schumer said, "Now we are routinely using criminal accusations and scandal to win the political battles and ideological differences we cannot settle at the ballot box."

His solution: Have a frank discussion of ideology instead.

A move to consider ideology

Schumer, who had jumped at the chance to chair the Judiciary subcommittee on courts when he became a senator, used his perch in 2001 to make speeches and hold hearings about the importance of seeking to determine court nominees’ judicial ideology.

That was controversial among some who said nominees should be assessed only on their legal excellence and proper demeanor, though Mincberg said groups like his had argued for assessing and voting on court nominees based on their judicial philosophy since Bork.

But when President George W. Bush said he would pick court candidates in the mold of conservative Justices Antonin Scalia and Clarence Thomas, Schumer said, "I'm befuddled by those who say the Senate shouldn't consider ideology when the president obviously does."

McConnell, then a Judiciary colleague of Schumer’s, disagreed, saying he feared Schumer "is trying to establish a new litmus test for the Senate that has not existed in the past."

Schumer pressed ahead, encouraging filibusters of circuit court nominees deemed too extreme or too reticent with their views. Among the targets was Miguel Estrada, Bush’s likely pick as the first Latino on the high court. After seven filibusters against him, Estrada withdrew.

Ideology as an issue for court candidates began to take hold.

"I think at least among the Democrats, and then I guess later it caught on with the Republicans, the idea of blocking a nominee just because of their ideology suddenly became acceptable," said Curt Levey, president of the conservative Committee for Justice. "It had a big effect."

Votes now follow party lines

Schumer’s first crack at voting on a Supreme Court candidate came in 2005 when Bush chose John G. Roberts Jr., a former Reagan White House lawyer and D.C. circuit court judge.

Schumer admitted he struggled with his vote on Roberts, who came off as brilliant and disarming in his confirmation hearings. But Schumer, citing Roberts’ refusal to answer questions about his ideology and Bush’s prototypes for justices, voted against him.

Schumer never wavered again. Nor have McConnell and most Republicans.

Now Senate votes for justices follow party lines. The numbers tell the story.

Votes for a president’s nominees from opposition party senators dropped from 22 for Roberts, to four for Samuel Alito, to nine for Sonia Sotomayor, to five for Elana Kagan, to three for Neil Gorsuch, to one for Brett Kavanaugh, and finally to none for Amy Coney Barrett.

Each side has goaded the other with jabs and paybacks.

In 2016, McConnell enraged Democrats by refusing to consider President Barack Obama’s nomination of Merrick Garland to replace Scalia, who died in February, saying voters should pick the next president to fill the seat.

Four years later, when Justice Ruth Bader Ginsburg died less than two months before the 2020 elections, McConnell pushed through the confirmation of Barrett.

McConnell claimed the Scalia open seat occurred in divided government with a Democratic president and Republican Congress, but the Ginsburg seat came up during unified government when Republicans controlled the White House and Congress.

Schumer and Democrats fought back.

In 2017, Schumer led a filibuster to block Gorsuch, President Donald Trump’s nominee for Scalia’s seat. But McConnell ended the filibuster for high-court nominees, citing Democrats’ decision to do the same for lower courts in 2013.

The next year, when Trump named Kavanaugh to the high court, Democrats grilled him as liberal activists interrupted the hearings with shouts, and they forced a special session to hear a woman’s complaint that when in high school Kavanaugh allegedly attempted to sexually assault her.

Democrats called McConnell’s actions and explanation opportunistic hypocrisy, and liberal activists said what he did was the biggest change to the Supreme Court confirmation process in the past two decades.

Those on both sides called the other biggest change in the battle over the courts the growth of outside groups and activists — and the amount of money funneled to them by anonymous donors, also called dark money.

As soon as Biden announced Jackson as his nominee, two dark-money groups, the conservative Judicial Crisis Network and the liberal Demand Justice run by a former Schumer aide, both announced $1 million plus ad campaigns.

Levey and Anderson told Newsday they don’t expect a major effort to block Jackson, because she wouldn’t change the court’s conservative 6-3 majority — unless an unexpected issue arises.

Still, Schumer has little room for error.

He must keep his 50-member caucus united behind Jackson with few, if any, Republican votes expected. Democratic Sens. Joe Manchin of West Virginia and Krysten Sinema of Arizona could be wild cards, but so far, they have voted with Schumer on judges.

He must contend with McConnell’s maneuvers to delay or impede the fast-track process Durbin has planned to confirm Jackson before Easter, citing the fast confirmation of Barrett.

And Schumer must hit the right political notes in the messaging that he’ll coordinate with the White House, his caucus and aligned outside groups, as Democrats and Republicans prepare to use the confirmation process as a warm-up act for the congressional campaigns this fall.

Schumer said he’s ready to win Senate approval for Jackson.

"Some people may not agree with her philosophically, but no one said a bad thing about her because she's such a decent person," Schumer told Newsday in a phone interview. "And my hope is that when Republicans sit down and meet with her, some of them will vote for her as well."