Rolling Over When It’s Payback Time

According to, among other sources, Politico and the Federalist Society, Senate Republicans are not exactly bracing for a “bare knuckle” fight over Biden’s nominee to replace liberal Supreme Court Justice Stephen Breyer. Whoever that nominee will be, that replacement supposedly will not change the balance of forces on the court between liberal activists and their opponents. It would therefore be a mistake, we are told, to waste ammunition and the good will of voters by going after the black female successor to Breyer. 

The likely appointee right now is Ketanji Brown Jackson, who sits on the D.C. Court of Appeals and who was raised to that post with bipartisan support in 2021. The fact that Senator Lindsey Graham (R-S.C.) and two other Republican senators voted for this appointee for the federal bench has allowed the leftist press to describe her as a thoughtful moderate, perhaps someone comparable to Merrick Garland at the time the liberal media were touting our current attorney general for the court vacancy left by the death of Antonin Scalia. 

Of course, Brown-Jackson is no centrist, unless we make that term highly elastic. While a judge on the D.C. district court, she tried to block Trump’s attempts to control illegal border crossings; and on the federal bench, she has faithfully supported the congressional January 6 Committee, particularly its efforts to force Donald Trump to hand over White House records that he treated as confidential. 

Brown-Jackson also decided in favor of Biden’s executive order barring residential evictions last August, something the Supreme Court later reversed. Like Garland, Brown-Jackson is clearly a Democratic operative, which in addition to her gender and racial identity explains why Biden may be choosing her. But Brown-Jackson is no less moderate than Leondra Kruger, who sits on the California Supreme Court and who is also being considered for the vacancy that Breyer’s departure will create.

The Republicans, being the polite party, will not summon up the ruthless determination that the Democrats did in trying to block the confirmation of Brett Kavanaugh. Republican sources are assuring us that this new nominee won’t change the composition of the court. She will be nothing more than a replacement for Stephen Breyer, who almost always voted with the Left on divisive judicial issues. Besides, Republican Party leaders are determined not to do anything that might alienate minority voters, for example, taking a strong stand against a female who is also a member of a racial minority.

There are certain problems with this calculation. If Brown-Jackson or someone like her is the replacement for Breyer, you won’t just be trading one liberal judge for another. You’ll be exchanging the courtly, verbally restrained Breyer, who opposed Biden’s plan for court packing, with a proven political actor, who will do everything in her power to weaken the political Right. The Republicans will also be showing us what we can expect of them if they take over the Senate: more timidity in the face of an aggressive opposition.   

It is not entirely clear that the GOP will risk losing votes if it roasts Biden’s nominee over the coals. (Naturally I would prefer doing a full Brett Kavanaugh in reverse, but I’m not asking for quite everything in my wish bucket.)  Exactly which votes are the Republicans afraid of losing if they don’t roll over in the confirmation process? Are they worried that they may lose the votes of black Democrats, which they are not likely to win in any case? Or perhaps they are trying to woo back the NeverTrumpers, who probably enjoy how Brown-Jackson has allied with Trump’s enemies? 

Unless Senate Republicans strongly resist the confirmation of Biden’s nominee, they will be substantiating the view of those of us on the Right who see their leadership and many in their ranks as spineless. While Democrats happily serve their leftist base, Republicans take theirs for granted, while reaching out for votes on the Left that are almost always beyond reach. 

I would expect Senators Rand Paul (R-Ky.) and possibly Josh Hawley (R-Mo.) and Ted Cruz (R-Texas) to raise cutting questions at the confirmation hearings, but if Mitch McConnell (R-Ky.) and other party leaders have their way, an attempt will be made to avoid harsh exchanges. The conservative voting base be damned! 

Although Glenn Harlan Reynolds is correct that “for the GOP, the optics of doing a full Kavanaugh attack on a black woman are poor” and that the media will never let you get away with that stuff, Senate Republicans will be facing a bigger problem if they cut and run. The optics are never good for any politician taking on the Left with a hostile media. But that does not mean those who are terrified can win by pulling punches. There is also justification for putting the other side on notice by getting tough. After what happened to Brett Kavanaugh, which included organized character assassination and staged assaults on Republican senators by screaming banshees in the elevators of what became (after January 6) the inviolate Senate building, it is time for payback, “big time.”    

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About Paul Gottfried

Paul Edward Gottfried is the editor of Chronicles. An American paleoconservative philosopher, historian, and columnist, Gottfried is a former Horace Raffensperger Professor of Humanities at Elizabethtown College in Elizabethtown, Pennsylvania, as well as a Guggenheim recipient.

Photo: Tom Williams/CQ Roll Call/POOL