Rising Heat at Judge Jackson’s Hearings Tracks Uncertainty Over Justice Thomas’s Health

Expectations that Judge Jackson’s confirmation hearings would be decorous rather than divisive foundered, with the rhetoric heating up in the shadow court’s ailing conservative bulwark.  

The Supreme Court nominee, Ketanji Brown Jackson listens as Senator Cruz speaks March 23, 2022. AP/Alex Brandon

Any confirmation battle over a swing seat on the Supreme Court would make Judge Ketanji Brown Jackson’s path to the bench to replace a fellow liberal look like a stroll through the cherry blossoms in bloom this week at the nation’s capital.

The surprise is that a preview may already be playing on the cable news networks, even if no one is ready to admit it openly. An escalation in rough questioning of Judge Jackson has coincided with the growing mystery around Justice Clarence Thomas’s health status, suggesting a combustible present that points to higher-stakes battles to come. 

While political theater and partisan grilling have become de rigueur for Supreme Court confirmation hearings, given the role of the high court and the stakes of what can be a lifetime appointment, the confluence of Justice Thomas’s health situation and Judge Jackson’s appearance before the Senate suggested a high court in flux.   

Justice Thomas was admitted to Sibley Memorial Hospital on Friday with what the court termed “flu-like symptoms” that resulted in an “infection.” 

In a statement dated March 20, the court noted that the jurist’s symptoms were “abating” and predicted he would leave the hospital in “a day or two.” He was expected to participate in “the consideration and discussion of any cases for which he is not present.” 

Six days since that statement, there has been no further update on the 73-year-old’s condition, with the court’s press office mum even as Justice Thomas has missed three days of oral arguments. The court has specified that Justice Thomas is vaccinated and boosted and is not sick with Covid-19. 

From the bench, Chief Justice Roberts said Wednesday that “Justice Thomas is unable to be present today,” but that he would review the briefs and transcripts of the five cases the court heard this week. 

Also on Wednesday, expectations that Judge Jackson’s confirmation hearings would be decorous rather than divisive foundered, with the rhetoric heating up in the shadow court’s ailing conservative bulwark.  

Abrasive questioning from Senator Graham, the ranking member of the Judiciary Committee, included asking the nominee, “What faith are you, by the way,” and roughly referencing the treatment Justices Amy Coney Barrett and Brett Kavanaugh received from Democrats during their confirmation hearings. 

Mr. Graham stormed out of the hearing room after a spat with Senator Durbin centering on the Guantanamo Bay prison.

Senator Cruz’s questioning focused on the teaching of critical race theory at Georgetown Day School, on whose board of trustees Judge Jackson sits. Referencing a book titled “Antiracist Baby,” he asked Judge Jackson: “Do you agree with this book that is being taught [to] kids that babies are racist?” 

Linking up with a line of criticism mined over the past week by Senator Hawley, Mr. Cruz accused Judge Jackson — one of his classmates at Harvard Law — of a “record of activism and advocacy as it concerns sexual predators that stems back decades.”

In addition to sharing headlines this week, the fates of Judge Jackson and Justice Thomas appear to be intertwined in another dimension. 

Judge Jackson told Mr. Cruz that she plans to recuse herself from any case involving Harvard University, on whose highest body, the Board of Overseers, she sits. 

That means she would not hear Students for Fair Admissions v. Harvard this fall, which turns on the constitutionality of race-conscious admissions in higher education.

Justice Thomas has long been an implacable foe of such admissions processes, writing in Fisher v. University of Texas that “a State’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause.”

In the fortunate eventuality that Justice Thomas makes a full recovery, his presence on the bench combined with Judge Jackson’s absence, should she be confirmed, would be a boon to those who would like to see considerations of race banished from admissions offices across the nation.

The New York Sun

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