Romney’s Switch Puts Ketanji Brown Jackson in Striking Distance of the High Court and Averts a Constitutional Conundrum

Updated at 8:25 p.m. As the Supreme Court confirmation process for Judge Ketanji Brown Jackson enters its final phase this week, early predictions of smooth senatorial sailing have given way to nail biting drama, punctuated by a late break for the judge who would be a justice and the president who nominated her. Just around sunset on Monday at Washington, D.C., Senators Murkowski and Romney — both Republicans — declared their support for Judge Jackson’s acceding to the Nine. They join Senator Collins in giving President Biden’s nominee a troika of GOP supporters as the full Senate readies for a vote. The two Republicans, who both voted to impeach President Trump — Mr. Romney having done so twice — have again bucked their party, and many of their own voters, on the national stage. While Ms. Collins and Ms. Murkowski had previously supported Judge Jackson’s confirmation as a rider on the District of Columbia Circuit of the United States Court of Appeals, Mr. Romney had not. In a tweet announcing his decision, the Republican from Utah labeled the judge a “well-qualified jurist and a person of honor.” Before Senators Murkowski and Romney announced their support, the senatorial arithmetic had become tight for Judge Jackson. To even get the vote to the full Senate, Democrats will have to resort to an obscure parliamentary maneuver called a “motion to discharge” to spring Judge Jackson from a Judiciary Committee that is deadlocked 11 to 11. Adding to the drama, one member of the committee, Senator Padilla, a Democrat, was marooned in California after his flight was grounded for what Senator Durbin called a “medical emergency on the airplane.” Mr. Durbin added that this mishap “could have happened to any of us,” and the vote was held with Mr. Padilla’s participation later in the afternoon. If the motion to discharge is passed, all that will stand before Judge Jackson and the Supreme Court seat of her former boss, Justice Stephen Breyer, will be securing the votes of 51 senators. That eventuality is now closer to reality, thanks to Mr. Romney and Ms. Murkowski. Every Democrat save Senator Sinema has pledged to support Judge Jackson. The Arizonan is yet to join her fellow moderate, Senator Manchin, in backing President Biden’s pick. Last year, Senators Sinema and Manchin supported all 42 of the president’s judicial nominations. Ms. Sinema would no doubt be facing much more heat for her reticence if Senator Collins, and now senators Murkowski and Romney, had not already pledged to support Judge Jackson. The Republican from Maine noted “I have concluded that she possesses the experience, qualifications, and integrity to serve as an Associate Justice on the Supreme Court.”Senator Graham, who along with Ms. Collins and Murkowski had earlier supported Judge Jackson, has taken a different tack, emerging as one of Judge Jackson’s chief antagonists during these confirmation hearings. He has called her the “preferred pick of the radical left,” an “activist to the core,” and “a bridge too far.” The support of three Senate Republicans means that Vice President Harris will not have to cast the decisive tie-breaking “yea” vote in a split chamber. This will come as a relief to Democrats for not only political reasons, but constitutional ones as well. As the Sun has reported, this confirmation by the narrowest of margins would be unprecedented ground. No Supreme Court nominee has ever been rubber stamped by a ballot from the vice president. While the Supreme Court is unlikely to tell the Senate how to conduct its business — the Constitution ordains that each house may determine the rules of its proceedings — the question of whether a tie-breaking vote is permissible is not exactly settled. In 2020, a Harvard Law professor, Laurence Tribe, a liberal lion, wrote in a Boston Globe op-ed article that “while the vice president has the power to cast a tie breaking vote to pass a bill, the Constitution does not give him the power to break ties,” when it comes to Supreme Court nominations. The “him” referred to was Vice President Pence. Mr. Tribe urged that “you don’t need to take my word for it” but instead averred that “Alexander Hamilton said the same thing way back in 1788.” Earlier this year, the professor told RealClearPolitics that “I doubt that I would reach a new conclusion upon reexamining the matter.”Now Judge Jackson has been rescued from the headache of breaking precedent even before she issues her first Supreme Court opinion. Even as she is set to enjoy what passes for robust bipartisan support in these divided days, Justice Breyer’s 87 “yea” votes in 1994 will certainly not be repeated by his protégé.

Romney’s Switch Puts Ketanji Brown Jackson in Striking Distance of the High Court and Averts a Constitutional Conundrum

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