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Law Class

What’s wrong with a little demagoguery?
Law Class

Yes, as promised, she would be the first black woman appointed to the Supreme Court. But in many other ways Judge Ketanji Brown Jackson is totally unremarkable in her remarkableness. She is a fully fledged member of America’s aristocracy, under consideration for one of the highest offices of that class. 

In the 19th century Alexis de Tocqueville observed that in American democracy, with all its passion for equality, lawyers still embodied a vestige of an old world aristocratic inheritance. Scum that many lawyers are, this holds true to a degree today, especially in the federal judiciary, and to that degree Jackson is as fully a part of that gentry class and representative of that tradition as anyone. She has clerked for the Supreme Court, served as an appeals court judge, and worked in our federal judicial system in many roles besides. It is an insular and rarified world. She attended Harvard for both her undergraduate and law degrees. Her husband, Dr. Patrick G. Jackson, apparently comes from a storied Boston family, a WASP and proverbial Brahmin.

Headlines around Jackson’s confirmation process have been dominated by accusations by Sen. Josh Hawley of Missouri that she has been lenient in cases concerning the possession and viewing of child pornography. Sen. Hawley introduced his case to the public on Twitter, has expanded it during the televised Senate Judiciary Committee hearings, and summarized it in a Fox News opinion piece. As the hearings continue, the issues and questions about sentencing and Jackson’s discretion in seven particular child pornography cases Hawley has raised still demand answers as much from Congress and our justice system as a whole as from Jackson.

Defenders of Jackson have asserted that she has been right to find sentencing guidelines and prosecutor requests excessive or leaning towards the extreme in various cases, either on the merits of a more therapeutic or non-punitive approach to criminal justice—embracing what you and I and Sen. Hawley might call a “soft on crime” approach—or because such adjustments are standard practice and simply the norm in the contemporary interplay of prosecutors, defenders, and Congressional guidelines for sentencing in such instances. Even some conservative figures, such as National Review’s Andrew C. McCarthy, have come to Jackson’s defense along this latter technical line, suggesting that sentencing guidelines are inadequate to the complexities of many child pornography cases, and describing Hawley’s line of prosecution as a “smear,” and “meritless to the point of demagoguery.”

What’s wrong with a little demagoguery? Sen. Hawley represents the people of Missouri, after all. And the Democrats have had a positive bacchanal during every Supreme Court nomination process since at least the, in the justice’s own words, “high-tech lynching” of Clarence Thomas. There is certainly no need to lie, to engage in actual smears, as Democratic senators did against Justice Brett Kavanaugh, but Republican senators should at least try, when given the chance, to create the kind of spectacle that forms the essence of democratic politics if they are serious about stopping a bad nominee. It shouldn’t be difficult to tell, as it has been in these hearings, whether most of the Republican members of the committee do or do not consider Jackson a bad nominee. Why has this all been so boring?

Supreme Court justices are the high priests of our civil religion, elected for life, the apparent guardians and benders of the long arc of history. Nominations are a religious festival and the Democrats take it seriously and know how to celebrate it. They understand the stakes, for the court has delivered progressivism’s greatest victories over the last couple decades. Conservatives might have the Federalist Society, but we need citizen shoes on the ground, too. Where are our costumed women, our activist agitators, our children shouting “shame”? At least pretend you care about what your voters think, senators, rather than performing the elder statesman for an Acela corridor audience. Jackson has denied having a judicial philosophy by which she can be assessed, and suggested she has a methodology instead. Move public opinion. Elicit some emotions. They are going to say you were slinging mud even if you didn’t. Might as well enjoy yourself, and actually try to hit the target.

Until the 17th Amendment, Article 1 Section 3 of the Constitution worked as written, namely, “The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.” But during a fit of the populism republics catch from time to time, we changed that in 1913. At one point, directly electing senators might have given the people more of a voice in the federal government, addressing some real failure to bring theory into practice. But today in practice the 17th Amendment has meant the Senate is as dependent on campaign money, and thus as crudely partisan and beholden to special interests as the House.

Federalist 62 explains that, because of the Senate as originally conceived, “No law or resolution can now be passed without the concurrence, first, of a majority of the people, and then, of a majority of the States.” Like the House represented the people, the senators guaranteed the agency of state governments in the formation of federal policy. Moreover, their six-year terms provided continuity for such policy; that is, they helped coordinate government policy over the long-term as do bureaucrats in executive agencies today—all this while also being truly representative, working on behalf of the state governments and, through state electoral politics, on behalf of the people.

Either conservatives should acknowledge and accept that the U.S. Senate is as much a circus as the House of Representatives, or they should repeal the 17th Amendment. Under the system of direct popular election which that amendment introduced, U.S. senators and federal judges do not address each other as class equals in committee hearings, but rather as tribunes of the plebs speaking to optimates. But if senators were again appointed by state legislatures, then the Senate would be a body representing the sovereignty of the states and could be a true aristocratic counterweight to the gentry of the bench. Then nominee hearings might actually be the sort of grand and solemn occasion where demagoguery had no place, and senators might be elder statesmen indeed and not only play the role for cameras.

For now, though, we can expect these judiciary hearings to continue, nominee after nominee, to be a strange chaotic mix of politics high and low, shedding far more heat than light, as members of America’s aristocracy find themselves questioned by and forced to make themselves appealing to our conflicted populares.

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