Ethics Wrap-Up: Stupid Confirmation Tricks

Marx said that history begins as tragedy and ends up as face. Let’s begin with a farce. Here was the headline of a Washington Post Op-Ed today: “The Senate Judiciary Committee mistreated Judge Jackson. I should know.” The author: Anita Hill, the Democratic lawyer and former staffer of Clarence Thomas who ambushed the then-SCOTUS nominee and accused him of unverifiable sexual harassment (for example, she said he once made a joke about a pubic hair on a Coke can in a meeting!), smearing and embarrassing him on national TV. In this latest screed, she’s not analogizing Thomas’s treatment by Democrats to that of Republicans attacking Jackson. It’s the criticism of herself for turning those 1991 hearings into a circus she thinks is telling, for she is black, and…wait, Thomas is also black, and he, like Jackson, was being considered before America for the highest court in the land. But Hill’s a black woman, see, so that justifies the column’s thesis, apparently. She’s a law professor, and that’s the quality of her analogy skills. Let’s hope Judge Jackson is better.

Hill has been making a living off of her unethical attempt to derail Thomas’s career for over 30 years. The only fair response to her at this point is, “Shut up, Anita.”  But at least she made me laugh.

Now that we’ve checked the funny papers, back to the news:

The Senate today confirmed Judge Ketanji Brown Jackson to the Supreme Court, with three Republicans adding their support to the unanimous Democratic block, making the vote 53-47.

Ethics observations:

1. The conservative news media reacted with headlines like this: “Republican Turncoats Help Confirm Biden’s Radical Nominee to Supreme Court.”

Idiotic. Voting for a qualified nomination by a President who won the election (I won’t say “fair and square, but he still won) when she cannot be rejected anyway is not being a “turncoat.” I’d say Romney, Collins and Murkowski helped reduce the GOP disgrace, except that those three might vote against their party just for the hell of it so it is not exactly integrity on parade in their cases.

Jackson is not a “radical,” either. That really is a smear, but Republican National Committee (RNC) Chairwoman Ronna McDaniel said in a statement after the vote,

“Biden’s pick Ketanji Brown Jackson is a radical, activist judge, one who failed to answer simple questions on her record, including leniency for child porn offenders and support of CRT. Jackson has proved to be in lockstep with the far left’s political agenda, even refusing to define what a woman is. The RNC will hold Democrats accountable this November for supporting Biden’s radical pick.”

At least Hill’s silly column was funny; this is indefensible. Jackson hasn’t proved anything—she won’t cast a vote or author an opinion until the Fall— except that she could handle herself well under fire. The questions about her record weren’t ‘simple,” they were “gotchas.” The beef over her sentencing of child pornography defendants was political contrivance at its worst: there are legitimate disagreements over the most just way to handle such offenders, or any defenders. Many judges and legal scholars object to the entire concept of mandatory minimum sentences, but Supreme Court justices don’t sentence anybody, and child porn is not one of the nation’s most pressing issues. The degree to which it dominated the hearings was a blight entirely the fault of the GOP.

Nor was the judge’s refusal to define what a woman is at a time when a biological man is being allowed to cheat women in Ivy League swimming by claiming to be one inappropriate (I may have suggested otherwise earlier: I was wrong). Some version of this issue may well come before the Court eventually. She should not decide it now.

2. The worst unethical line of attack by the Republicans was criticizing Jackson for “defending terrorists” at Guantanamo Bay. How many times have I had to make this basic point? Defending unpopular and even evil clients is what lawyers do and must do for us to have a system of justice. Lawyers know that, and they know that representing someone isn’t an endorsement of their actions, beliefs or character. The public doesn’t get this, and the GOP made them dumber and more legally illiterate by its foolish claims.

3. All the networks, even Fox, and news reports made the big story that Jackson’s confirmation was historic—you know, we’ve had black Justices and female justices, but she’s the first black female justice. That’s trivia, just as it will be when the Court has the first paraplegic justice, or Asian-American albino. The emphasis on identity over substance is symptom of a serious cultural sickness. Joe Biden, of course, started the oubreak in this instance

4. Again, the stupid party. When Jackson’s confirmation was announced by Kamala Harris (who somehow had to fight off a giggling fit: what’s wrong with her?), the Democrats gave Jackson (who wasn’t present) a rousing standing ovation. The Republicans had all left the Chamber. How graceful! How statesmanlike! How professional!

Morons. They should have stayed around, and applauded too. I would have, no matter how I voted. “So, they wouldn’t applaud a black woman, eh?” They deserve that cheap shot. They asked for it.

But wait! There were more unethical confirmation doings elsewhere:

Tennessee Valley Authority board nominee Beth Prichard Geer, a former chief of staff for Al Gore, was savaged by Senator Joni Ernst (R-Iowa) in her hearing this week based on a single word tweet Geer had authored seven years ago. Ernst apparently holds grudges: she had a  blown-up image of the tweet ready so she could confront the nominee.

Geer stepped into the trap when she agreed with Ernst, in response to the Senator touting  the importance of civility and working with others. Then Ernst hauled out Geer’s tweet on a floor chart. It showed a retweeted Fox News photo of Ernst in 2015 when she delivered the GOP response to Obama’s State of the Union address. The single word: “Hideous.”

“Can you explain that tweet?” Ernst asked. Clearly surprised, the nominee first huminahumina-ed that she couldn’t read the chart. “I just read it to you. ‘Hideous,'”Ernst responded. Then Geer stooped to a non-apology apology:

“Well, I apologize if I offended you, and I appreciate you bringing it to my attention. And I do, in fact, believe that civility is key, and I’m sorry that I did not demonstrate that, in your opinion, with that tweet.”

Not good. Ernst then asked if Geer has “made a habit of calling women that disagree with you ‘hideous,’ or if it was simply an exception,” adding,

“Folks, this tweet is from 2015. We heard a lot about tweets in the former administration. This is prior to that. This is not Iowa nice and I’m calling you out.”

Later she brought the tweet up again,:

“Ms. Geer, when you called me hideous, were you referring to my appearance or to the views that I held and are held by many Americans across this country?”

Geer denied that she was referring to Ernst’s physical appearance—I think this was obvious anyway. Ernst has some self-esteem issues. The Senator then “pounced”:

“Ma’am, I’ll cut you off right there. How else could this come across? The word hideous, to me, only has one meaning. And the views I expressed in my State of the Union response were personal experiences. So maybe you didn’t appreciate that I grew up on a small, rural farm in an economically disadvantaged area of Iowa. Maybe you didn’t like that my mother had to put bread bags on my shoes when I went to school. Maybe you didn’t like that, but a lot of Americans have had the same experiences that I have had. And so to call my personal views as hideous is an affront to half of America.”

 Ernst then announced she would vote against Geer’s nomination, because she could not be counted upon to be civil.

So a U.S. Senator’s feelings were hurt by a vague tweet that she thought might be insulting her looks, and based on that, she is voting against the tweeter seven years later.







15 thoughts on “Ethics Wrap-Up: Stupid Confirmation Tricks

  1. I think the GOP attacks on her for defending terrorists are along the same lines as Democratic attacks on lawyers who defend the KKK or white supremacists in court. Both sides seem to believe that “unworthy defendants” don’t deserve representation, which is a threat to legal representation in general.

    She has praised critical race theory, and she couldn’t define what a woman is. Even if the GOP was trying to use a “gotcha question,” her answer still told me enough.

    CTR has no place in the law, and her refusal to define what a woman is means she is either a progressive or beholden to them, and most progressives don’t believe in the constitution or any real limits to government power unless it comes to sex, which then there are no standards except consent. You can be “qualified” on paper, but when you are at the highest level, the standard is different than a judge who is bound by precedent. She can now make precedent.

    I would vote against anyone who has shown they are operating based on such a “woke” ideology because she will end up inserting that into her opinions. The progressives can’t help themselves. All they care about is getting the outcome they want, and they will find a way to do so. This doesn’t mean “every decision” would be terrible and that she couldn’t sometimes make persuasive arguments, but her overall approach is going to be influenced by progressive ideology. I saw it in law school with my classmates. Few of them believed in the constitution at all.

  2. A non-lawyer citing precedent is usually an example of hubris, but when it comes to providing legal counsel to even unpopular defendants I’ll go back well before Gideon v. Wainwright, the 1963 SCOTUS decision that established a right to counsel (and sparked a wonderful performance by Henry Fonda as Clarence Gideon in the 1980 movie “Gideon’s Trumpet”) and reference the trial in colonial Boston where John Adams, an active member of the independence advocacy group “Sons of Liberty” and the future second President of the US, angered some Sons of Liberty when he defended nine British soldiers accused of murder after the 1770 Boston Massacre. Quoting an interview with historian Dan Abrams (see the link), “The main reason was that he felt everyone was entitled to a defense. But I also think he learned a little about the case and thought there was a legitimate defense—because the events were not as clear cut as some patriots wanted to make them out to be.”

  3. Generally agree with your points. Except this one:

    “They should have stayed around, and applauded too. I would have, no matter how I voted. “So, they wouldn’t applaud a black woman, eh?” They deserve that cheap shot. They asked for it.”

    Is it a tradition to applaud the confirmation of a Supreme Court Justice? If not, why applaud here? We’re they applauding as a “Rah-Rah, our side won”? Were they applauding because of her color and genitals, her primary and secondary qualifications?

    To be clear, even though I probably agree with her on next to nothing, I would have voted to confirm her. She was qualified and there is no requirement that the President appoint the “best” candidate. There is no “best” candidate. There is a set of qualified candidates out there whose members have a variety of strengths and weaknesses. So long as the President appoints someone that appears to belong to that set, the Senate should confirm. The Senate does not get to appoint; they get to advise and consent; there are a check for an abuse of power, not a veto of the legitimate use of power.

    I might have stayed, but I would not have applauded. There is too much about the Democrats that smacks of the cult of personality. Obama’ a Hope posters, the Notorious RBG, Fauci action figures, , Anita Hill, Blasey Ford. I could be wrong, but the right seems to be far less likely to deify their side. The right has their idols, Reagan being the most prominent. But, both sides have their idealistic presidents (Clinton, Kennedy, FDR). Trump may be an exception; he had a base that had a streak of fanaticism. However, I don’t think I have ever gotten excited about a Republican-appointed Supreme Court Justice. I liked Scalia and I like Thomas, but I could never laud them with the level of vitriol heaped upon them by their detractors, the same people who cheered on “RBG.”

    It seems that this inclination is the same thing that makes some people think Biden is doing a good job.

    No thanks. She should have been confirmed. The Senate did its job; it deserves no cheers for doing that. She should be sent on her way to the other branch; it’s the Supreme Court’s job to welcome her into their fold; those are her colleagues, not a bunch of grandstanding Senators whose applause is but another example of grandstanding.


    • I wouldn’t have voted to confirm, and I would have said openly that “after the last three votes, and the treatment the last three nominees received, my answer is loud and clear, “No, go to hell.”

      • Althouse this morning: “Anyway, congratulations to Ketanji Brown Jackson for getting through the hazing process. I had to avert my eyes. I knew she’d make it, and so did everyone else who knows the game. Spare me the part of the game where you assert that your party had to do it because the other party did it that other time.”


  4. I have a question for all you learned legal scholars and ethicists: Does there exist in the Constitution or in Federal Law a description of the qualifications of a District or Circuit Judge or Supreme Court Justice?

    Having been nominated by the President, and confirmed by the Senate, during 22+ years in the USAF, there were very definitely qualifications for my appointment to each grade I attained, and very definitely it was the province of the Senate to provide advice and consent to my appointment. Yet, in the case of Judges or Justices, I could find no statement of qualifications other than the fact of an individual’s nomination by the President.

    What am I missing?

    Thanks, folks,


    • Nothing. There are no official qualifications, just a general traditional requirement that a Justice be “qualified.” The ABA has been given the job of doing research and judging how qualified a nominee is, but the ABA is a left-biased organization. A SCOTUS judge need never have sat on a bench (like Justice Kagan). No non-lawyer has ever been appointed, and presumably none such could be confirmed.

  5. I think her refusal to acknowledge the existence of natural law might be terrifying. But there might be some missing context there. Though I don’t know what it would be.

    Are Supreme Court Justices allowed to have serious problems with things in the Constitution? Is it disqualifying to believe that rights are gifts granted by the government, and not that rights exist naturally and the government can only infringe upon them? Are there certain Constitutional principles that are so American that you’re an infiltrator and an enemy if you don’t accept them? Are there any non-negotiable American positions at all? I’d think natural rights would be one.

    • Natural Law is too easily manipulated to be a valid basis for objective judging, because it mixes up morality with law, religion and ethics.Opponents of same sex marriage cited ‘natural law’ to argue that the SCOTUS ruling violated “God’s Law.” That’s theism, and it doesn’t belong on the Supreme Court

  6. Score a few for Seantor Ernst. You know if the parties were reversed the mainstream media would be applauding her.

  7. There’s nothing nefarious about the republicans leaving. There’s an extremely simple and mundane explanation. Rand Paul is an asshole.

    See there’s nothing on the senate scheduled for today–the Democrats stayed in DC for the victory celebration which just ended–and the republicans all had the rest of their days planned/plane ticket to go home after the vote which was scheduled for a set time and no delay antics planned. But Rand Paul decided to be late hold things up and delay everyone else.

    Earlier in the day he was part of the 100-0 vote to ban Russian Oil, an uncharacteristic vote for him, one wonders how McConnall pressured him, and after that vote he took off his suit, threw on some jeans and went out. And he’s a grown man, if he wants to take an early lunch or day drink or go to the dog park and play with puppies when in a bad mood, that’s fine. He didn’t come back on time, he didn’t even bother to put his suit back on. He showed up a half hour late and cast his vote by yelling in from the hallway then turned around and left. The others–having their scheduled disrupted–headed off to their now tardy meetings or to rush to grab their things and head for the airport.

    And that’s all there is to it. One man couldn’t be bothered to show on time, forty-six others had their plans blown and had to rush.

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