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Republican senators appear to be using the confirmation hearings for Supreme Court nominee Ketanji Brown Jackson to lay out their political priorities for the 2022 midterms and beyond. These include the banning of abortion and questioning the constitutionality of gay marriage, culture war battles that are already being engaged at the state and local levels.
“For many senators, yesterday was an opportunity to showcase talking points for the November election,” Senate Judiciary Committee Chairman Dick Durbin, D-Ill., said in his remarks opening Wednesday’s hearing, adding to Jackson, “Your nomination turned out to be a testing ground for conspiracy theories and culture war theories.”
These themes are significant, given that Senate Minority Leader Mitch McConnell reportedly told colleagues and donors last year that he wasn’t going to put forth a platform for Republicans to run on in 2022, hoping that the traditional midterm backlash against an incumbent in the White House will put the GOP back in power. When Sen. Rick Scott, R-Fla., chair of the National Republican Senatorial Committee, released a policy agenda for the party, McConnell publicly criticized him.
While McConnell reportedly wanted to avoid any spectacle around a nomination that will not shift the balance of power on the court, the members of the Judiciary Committee did not oblige. Their questioning underlined national debates about abortion, LGBT rights and teaching about race and sexuality, among others. It also sought to cast a negative light on Jackson’s allegedly lenient sentencing, repeatedly returning to the topic of child pornography long after their concerns had been refuted.
Sen. Ted Cruz, R-Texas, asked Jackson about books in circulation at a private Washington, D.C., school where she serves on the board, and made clear his concerns over the teaching of critical race theory. That refers to an academic approach to exposing the systemic impact of racism, a topic generally too advanced for K-12 education, but Republicans have spent the last year targeting books and curricula at public schools around the country.
Deborah Caldwell-Stone, director of the American Library Association’s office for intellectual freedom, told Yahoo News in January that in her two decades with the organization she has not seen this many “challenges,” the ALA’s term for requests to remove books.
“Some of this has been organized around, frankly, a very cynical campaign to vilify materials dealing with racism in the United States and the experiences of Black Americans, particularly their experiences with police violence and systemic racism, under this rubric of ‘critical race theory,’” Caldwell-Stone said. “We’re also seeing organizations who believe that young people should not have access to information about gender or sexual identity.”
The official Republican Party Twitter account posted a graphic connecting KBJ (the initials of the first Black woman to be nominated to the Supreme Court) to CRT (the initials of the theory that Republicans have been trying to brand as anti-white).
Sen. John Cornyn, R-Texas, spent much of his time discussing Obergefell v. Hodges, the 2015 ruling that legalized gay marriage across the country. Those questions come as Republicans in Florida move forward with a controversial “Don’t Say Gay” bill, which prohibits teachers from discussing sexual orientation and gender identity with children in kindergarten through the third grade. Defenders of the bill have said those who oppose it support the “grooming” of children, recalling a decades-old attack on gay people. Similar bills have now been introduced in other states.
Gay marriage wasn’t the only federally recognized union questioned on Tuesday: Outside of the hearing, Sen. Mike Braun, R-Ind., told a group of local reporters that he didn’t think interracial marriage should have been legalized nationwide by the 1967 Supreme Court ruling in Loving v. Virginia. Braun later said he had misunderstood the questions and disavowed his own comments. Jackson is in an interracial marriage.
Republicans have cited their education policies as a primary reason for their upset victory in the 2021 Virginia gubernatorial election and school board races, and hope to make education a primary issue for the midterms. (An analysis published this month by the Democratic data firm TargetSmart said this is the wrong conclusion, and progressive candidates recently won a number of high-profile school board elections in New Hampshire.)
The issue of transgender rights was also brought up during Jackson's confirmation hearing, primarily by Sen. Marsha Blackburn, R-Tenn. While Blackburn referred to the importance of parental rights to Republicans, parents of trans children in Republican-controlled states are being threatened with felony charges if they seek gender-affirming care for their offspring. Last week, a pediatrician in Blackburn’s home state wrote that anti-trans bills proposed by the Tennessee government were causing a mental health crisis.
While Jackson was fielding questions about trans issues, on the other side of the country Republican Gov. Spencer Cox of Utah vetoed a bill passed by his state's GOP-controlled Legislature that would have prevented trans youth from playing sports, one day after Republican Gov. Eric Holcomb vetoed a similar piece of legislation in Indiana. According to tracking by the Human Rights Council, 147 anti-trans bills were introduced in 34 states last year.
Cox said his veto would be overridden on Friday and issued a statement explaining his decision in which he wrote of trans youth wanting to play sports, “Rarely has so much fear and anger been directed at so few. I don’t understand what they are going through or why they feel the way they do. But I want them to live.”
A number of Republicans, spearheaded by Sen. Josh Hawley, R-Mo., continued to push the narrative that Jackson had gone light on child porn offenders. Jackson and Democrats continually rebutted the claims, but it still fed into Fox News' primetime slate and the undercurrent of the QAnon conspiracy theory, which proposes that Democrats are behind a secret cabal of child sex traffickers. A number of Republican legislators in Congress, including Reps. Marjorie Taylor Greene and Lauren Boebert, have been aligned with the belief system, and their adherents frequented Trump rallies, proudly sporting the letter Q. NBC News reported last year that believers in the conspiracy were running for office, including school boards, while being more tactful in how they presented their beliefs.
Sens. John Kennedy, R-La., and Lindsey Graham, R-S.C., were among the panelists who asked Jackson questions about abortion. A number of states have already passed or are in the process of passing abortion bans, making it impossible for women to use a clinic, and in many cases allowing family members or neighbors to report those who seek abortion.
As Jackson was testifying on Tuesday, Oklahoma’s state House passed a near-total ban, allowing exceptions only to save the mother’s life and allowing private citizens to sue any doctors who perform abortions, while a restrictive law banning abortion after six weeks in Idaho was signed into law by Republican Gov. Brad Little as Jackson spoke Wednesday. They were the latest pieces of state legislation targeting abortion access, coming with the expectation that the Supreme Court is set to completely overturn or at least greatly weaken Roe v. Wade when it rules on a Mississippi abortion ban later this year. Blackburn has also repeatedly referenced the 1965 case Griswold v. Connecticut, potentially imperiling the ability for women across the country to access birth control, as another possible step for the party to take.
Mistie DelliCarpini-Tolman, state director of Planned Parenthood Alliance Advocates in Idaho, told Yahoo News that the laws being passed across the nation are the “culmination of a decade-long campaign by anti-abortion extremists to secure this conservative majority of the Supreme Court.”
“We’ve been seeing these 15-week bans pop up across the country, in Mississippi and Kentucky and Florida and other areas,” DelliCarpini-Tolman said. “These extreme legislatures that are emboldened by the Supreme Court’s conservative bent.”
Sen. Tom Cotton, R-Ark., focused his time asking Jackson, a former public defender who worked on the U.S. Sentencing Commission, about being soft on crime, a charge that has been continually leveled at Democrats. (Cotton also criticized Jackson for using new guidelines signed into law by former President Donald Trump.) While some Democratic politicians and activist groups have pushed for police defunding, few cities have actually cut budgets, and President Biden has consistently called for increased funding for police, much to the frustration of reformers whose platform gained prominence in 2020 following the deaths of George Floyd and Breonna Taylor.
The anti-police label has been difficult to pin on Jackson, who has the endorsement of the Fraternal Order of Police and the International Association of Chiefs of Police, as well as having two uncles and a brother who were officers.