At this moment, Judge Ketanji Brown-Jackson awaits her fate in the U.S. Senate. Democrats are looking for the right time and place to announce their support for her, while ambitious Republicans are trying to determine how they can get away with a “no” vote and what reasons they should give. And within the coalition of activist groups that are closely tied to the Democratic Party, everyone is all hands on deck- putting out press releases, tweeting tweets, looking to jump on any objection by any Republican to the nomination as unprincipled, unpersuasive, and, of course, racist and sexist.
However, there’s a huge unreality inherent in this process. Judge Brown-Jackson has been confirmed twice by the Senate already and will be confirmed a third time. She has no personal scandals, and while she is obviously liberal, she’s a careful, cautious, and judicious, and has confined her rulings in important cases squarely within principle and precedent. The chances of her rejection by a Senate with 50 Democratic votes is very close to 0%, barring some huge scandal we don’t know about. Indeed, it is much more likely that she ultimately draws some Republican votes and gets confirmed 56-44 or something.
So why is so much work being put into her confirmation? I can hear a reader answering “you can never be too careful. Republicans may find something. Look at how stuff turned up during the Brett Kavanaugh and Clarence Thomas confirmations and ultimately almost derailed each of them”. To which I say, “be serious”. Republicans would have turned up any personal scandal if there was one; Judge Brown-Jackson has been carefully vetted. And by the way, at least with Kavanaugh, there were reports that Mitch McConnell advised the Trump White House not to pick him, an indicator that perhaps there were rumors of things. There are no rumors surrounding Judge Brown-Jackson.
But at any rate, imagine a worst case scenario where she had to withdraw. It’s not like there aren’t 1,000 other qualified liberals that Biden could pick to replace her. So what’s really going on?
What’s really going on is that major political activist groups have a business model that’s centered around fundraising and storytelling, and the narrative that Judge Brown-Jackson’s nomination is threatened by those evil and perfidious Republicans is one that accords with a lot of elite liberals’ prejudices and is likely to bring donations in.
Judge Brown-Jackson is, obviously, the first Black woman nominee to the U.S. Supreme Court. Based on the narratives that liberals always tell themselves, that means her nomination should automatically be in trouble. After all, under intersectionality theory, she not only faces discrimination as a Black person, and as a woman, but faces additional discrimination because she is both. How could she possibly overcome this and win confirmation?
There was a very telling illustration that circulated on the left in the wake of Kamala Harris’ selection as the Vice Presidential nominee that expresses this, I think.
The problem with the analogy being drawn is that people threw tomatoes and hurled virulent racist insults at young Ruby Bridges as she walked into school. Whereas Kamala Harris has meteorically risen from a California prosecutor up through the Vice Presidency of the United States, and at no point has her race or gender stopped that rise.
The reality is that while obviously there’s still a ton of discrimination that victimizes numerous Black women, it doesn’t victimize Black women who run for Vice President or are nominated to the Supreme Court. Indeed, even Sen. Lindsey Graham, one of the designated villains of the Brown-Jackson nomination, simply suggested a different Black woman, Judge Michelle Childs, for the position. And even over on the right, where they of course in the main oppose Brown-Jackson, there are a lot of big fans of Janice Rogers Brown, a Black woman who was groomed as a potential Supreme Court nominee by conservatives.
But here’s the thing- even though it isn’t true, liberals believe it. And more specifically, the elite liberals who donate to activist groups believe it. So fighting to defend Judge Brown-Jackson’s nomination, on the verge of being sunk by racist and perfidious Republicans, is gold for getting donations. Accordingly, it’s all hands on deck.
The problem is that this gets replicated over and over again. For instance, I don’t know exactly how much money is spent by activist groups filing amicus briefs in abortion cases, but it’s surely a lot. Elite lawyers are expensive, and often several of them participate in the writing of each brief. Yet, it’s almost impossible to conceive of a situation where any amicus brief in an abortion case would matter, and if one did, it would need to be a very special case where, for instance, some random abortion law had a totally unforeseen and unintended effect on an Indian tribe or some similar situation.
My point is, groups that are supposed to be trying to change the world and influence policy and solve thorny problems spend a ton of their donors’ money chasing more donors’ money by throwing resources at issues where they will do absolutely no good and where their efforts aren’t needed. Indeed, there’s probably a virtue signaling aspect to this as well, as organizations show solidarity with other coalition members. So a full court press by a gay rights group on Judge Brown-Jackson’s nomination will show solidarity with organizations that advocate for Black women.
And you can see this in operation right now. Every time a Republican announces some ground to oppose Judge Brown-Jackson, Twitter jumps on him or her. “Oh, you think it’s bad that she was a public defender. I never heard you express any concern about people who defend big corporations!”. Influencers and heads of major Democratic Party coalition groups retweet it, and we are off to the races. Meanwhile, Judge Brown-Jackson’s confirmation remains the same sure thing it was before.
And also meanwhile: right now, in South Central Los Angeles, there are Black women living in horrendous conditions. Their kids walk by drug deals on their way to school, the schools can’t afford books, the mothers have to work two jobs and barely see their kids, and the LAPD harasses their teenage sons. Things are actually really difficult for Black women in America, but not generally the ones who grow up to become elite lawyers, Vice Presidents, and Supreme Court nominees. It would help if Democratic Party coalition groups worked more on those problems, because there are a lot of them, and they need solving. They also may require stepping on the toes of other members of the coalition, e.g., some of the potential solutions for inner city schools require doing things that teachers unions (another member of the Democratic coalition) may not like. If you have a staff that is scouring Josh Hawley’s tweets for stuff on Judge Brown-Jackson, you are diverting young activist labor from working on the structures that are really oppressing Black women in this country. It’s not a good thing.
Activist Groups Often Pick the Wrong Fights
Right. Except that the McConnell thing wrt Kavanaugh was not about rumors of anything. McConnell expressly said that Kavanaugh's path to confirmation would be a bit more difficult because he had more of a paper trail — not because of a scandal (let alone an accusation of this sort).