During the second day of her confirmation hearings for the Supreme Court, Judge Ketanji Brown Jackson had to put up with the expected barrage of Republicans’ predictable and theatrical questions, designed more for the FOX News coverage than learning anything useful about the nominee.
One of the worst exchanges, however, came from Sen. Lindsey Graham, who decided to question her faith as payback for the way Democrats called into question the religious beliefs of Amy Coney Barrett.
GRAHAM: … What faith are you, by the way?
JACKSON: Senator, I am, um, Protestant…
GRAHAM: Mmm… okay…
GRAHAM: Okay. Could you fairly judge a Catholic?
JACKSON: Senator, I have a record of… judging everyone…
GRAHAM: I am just asking this question because… How important is your faith to you?
JACKSON: Senator, personally, my faith is very important. But as you know, there’s no religious test in the Constitution under Article VI and…
GRAHAM: And there will be none with me.
JACKSON: … And it’s very important to set aside one’s personal views about things, in the role of a judge.
GRAHAM: I couldn’t agree with you more. And I believe you can. So, on a scale of 1 to 10, how faithful would you say you are, in terms of religion? You know, I go to church probably three times a year, so that speaks poorly of me. Or do you attend church regularly?
JACKSON: Well, senator, I am reluctant to talk about my faith in this way just because I want to be mindful of the need for the public to have confidence in my ability to separate out my personal views.
Those were fantastic answers from Jackson, who has not spoken publicly about her faith very much (despite being religious). She shouldn’t have had to answer any of them, but she did because saying what the rest of us were thinking would likely have derailed the hearings.
She answered politely and honestly because of the situation she was in. Graham knew she would do that, so he took advantage of the hearings by trying to make her unnecessarily uncomfortable.
Graham went on to explain why he was going through this line of questioning. He didn’t particularly care about any of her answers; he merely wanted to expose what he believed was a double standard: If those questions about religion were uncomfortable for Jackson, then why was it okay when other senators questioned the views of Amy Coney Barrett when she was up for federal judgeships?
There were legitimate reasons to ask Amy Coney Barrett about her faith
In 2017, when Barrett was a nominee to become a federal judge, she was asked by the Senate Judiciary Committee about how her Catholics beliefs might influence her decision making. It was an absolutely fair line of questioning because Barrett had written papers discussing how Catholics like her should deal with parts of the law they don’t agree with.
One stood out above the rest: Barrett had published a law review article about how Catholic judges should handle death penalty cases since the Church opposed the practice. As the Freedom From Religion Foundation notes, Barrett “said they ought to recuse themselves rather than violate their religious beliefs. In other words, Barrett herself concluded that religious belief might prohibit Catholic judges’ from doing their job.”
That’s why it was essential to find out how her faith might impact her views on topics like capital punishment and abortion rights—both of which the Catholic Church opposes. They asked her about her Catholic faith because Barrett gave them reason to question it.
Conservatives didn’t want anyone raising those concerns at all. They wanted her to be elevated to the federal bench, believing she would help them at least undermine reproductive rights across the country. Exposing her views this early could have gotten in the way of their agenda.
That’s why, when Sen. Dianne Feinstein inartfully said to her, “The dogma lives loudly within you,” referencing how Barrett would likely try to overturn Roe v. Wade, Republicans jumped on it as an example of how Democrats were anti-faith. They ignored the context. (They always ignore the context.)
Instead of having a discussion about how a judge’s faith might prevent her from respecting precedent, which was the only concern, Republicans pretended people were mocking Barrett for being religious, period.
As if “liberal” justices aren’t also religious. (Sonia Sotomayor is Catholic. Elena Kagan and Stephen Breyer are Jewish.) Religion isn’t the problem. Religion overriding the Constitution is the concern. And people were right to be concerned about Barrett allowing that to happen.
Republicans, however, just took that clip of Feinstein’s remarks and ran with it. Unfortunately, it worked. Barrett got the votes to become a federal judge in 2017 and she later rode that all the way to the Supreme Court where she’s been one of the justices repeatedly ruling on the side of religion no matter how much harm it causes.
Incidentally, during Barrett’s confirmation hearings, it was Graham who asked her about her faith more directly than anyone else.
Ketanji Brown Jackson’s answers about her faith were fantastic
When President Joe Biden nominated Jackson to the Supreme Court last month, she accepted the nomination with a speech that included this line: “My life has been blessed beyond measure, and I do know that one can only come this far by faith.”
I criticized that statement at the time because she was implying that everyone needed faith. That’s just not true. She, of all people, succeeded in her field because of the hard work she put into it, not some supernatural higher power.
Jackson graduated magna cum laude from Harvard University. She graduated from Harvard’s law school. She clerked for a district judge, appellate judge, and Justice Stephen Breyer (whom she would be replacing). She worked at a high-paying corporate law firm but also served as a low-paid public defender. So claiming that faith played a role in where she is today downplayed her stellar history.
That’s why it was a breath of fresh air to listen to how she answered Graham’s questions. She didn’t shy away from saying she was Christian. She shouldn’t have to. But she also made it clear that her faith was private, her decisions would never be influenced by her personal religious beliefs, and that anyone who might appear in front of her would always be given a fair shot.
That’s what all nominees in this position should be saying. It’s only a problem when there’s good reason to think that’s not going to happen, as was the case with Barrett, but Jackson has never given people a reason to think that.
Why Lindsey Graham’s attempted smear failed
The rest of that exchange between Graham and Jackson went like this:
GRAHAM: Well, how would you feel if a senator up here said of your faith, “the dogma lives loudly within you,” and that’s of concern? How would you feel if somebody up here on our side said, “You know, you attend church too much for me,” or “Your faith is a little bit different to me,” and they would suggest that it would affect your decision? Would you find that offensive?
GRAHAM: I would if I were you. I found it offensive when they said it about Judge Barrett. The reason I ask these questions is: I have no doubt that your faith is important to you. And I have zero doubt that you can adjudicate people’s cases fairly if they’re an atheist. If I had any doubt, I would… I would say so. But the only reason I mention this, judge, you’re reluctant to talk about it, ’cause it’s uncomfortable. Just imagine what would happen if people on late night television called you an f’in nut, speaking in tongues, because she practiced the Catholic faith in a way they couldn’t relate to or found uncomfortable. So, judge, you should be proud of your faith. I am convinced that whatever faith you have and how often you go to church, it will not affect your ability to be fair. And I just hope, going in the future, that we all can accept that.
Graham played the same Republican game as usual. Instead of acknowledging the actual reasons why Democrats challenged Barrett, he made up his own bullshit reason, claimed it was true, and used it to make a larger point about religion. It failed miserably. It didn’t help his case that Democrats never went after the religious beliefs of the five other conservative justices because it was always irrelevant in their cases; there were plenty of other problems with their records, but faith wasn’t on the list.
Graham ended up looking like a jackass, Jackson came off looking apolitical (albeit rightly annoyed). And let’s hope it creates an opening to have a meaningful discussing about when religion ought to be discussed when it comes to a federal judge’s confirmation.
There’s nothing in Jackson’s judicial career that even suggests her religion would interfere with her decisions. The fact that Graham and his GOP colleagues couldn’t offer up a single example gave away the game right there.
Naturally, Graham ended his line of questioning by storming out after a hissy fit, suggesting that Jackson’s clients as a defense attorney should be held against her. It was yet another sign that Graham, who had no problem voting for Jackson when she was nominated as both a district and appellate judge, was desperate to find some reason to disqualify her this time around because none of the usual attacks were working.
He couldn’t find any, so he chose to question her faith.