Brooks and Capehart on Ketanji Brown Jackson’s confirmation, restrictive new abortion laws

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• Geoff Bennett:

  Today, President Biden celebrated alongside Judge Ketanji Brown Jackson, who will make history when she becomes the first Black woman to take a seat on the nation's highest court later this year.

  But, before she does, the Supreme Court seems poised to upend abortion rights, causing states to examine their own laws. And, in Ukraine, accusations of potential war crimes are raising questions about whether and how this country is morally obligated to intervene in war.

  That brings us to the analysis of Brooks and Capehart. That's New York Times columnist David Brooks and Jonathan Capehart, associate editor for The Washington Post.

  It's great to have the both of you with us on this Friday.

  And, Jonathan, Judge Jackson, as I'm sure you saw today, she marked her historic confirmation to the Supreme Court with this moving speech from the White House, in which she celebrated the hope and promise of a nation. That was the phrase that she used, this hope and promise, where it was possible for her family to go from living under segregation to a Supreme Court appointment in one generation.

  How did that moment strike you?

• Jonathan Capehart:

  Oh, it was a fantastic moment, Geoff (AUDIO GAP) Americans in this country has not been pleasant, where the ideals that are written down in our founding documents didn't apply to us, either in whole or at all or fully.

  But it was the promise in our founding documents that gave the enslaved the hope that they would no longer be enslaved. It gave the newly freed African Americans the hope that they would one day be full citizens of this country. And it was the words in those founding documents that gave the succeeding generations the hope that they could live out the ideals written in those documents.

  This is not a perfect nation, and we don't always get it right. But on a day like today, when you see someone as brilliant as Judge Ketanji Brown Jackson, who worked hard, whose parents worked hard, she worked hard, everyone around her, worked hard to get her to this point, it gives me — it gives me hope, that those — the ideals in the founding documents do apply to — do apply to us and makes it possible for other people, African Americans, but all Americans, to see that those words in those documents mean something and can be fulfilled, if only we open the access so that everyone can fulfill the dream.

• Geoff Bennett:

  And, David Brooks, as President Biden was sort of marking the moment and celebrating the success of Judge Jackson, he decried the treatment of her by some Republicans during the confirmation hearings as verbal abuse.

  And then there was that moment yesterday on the Senate floor after the vote was called, after she was confirmed. The Democrats are erupted in cheer and Republicans, save for Mitt Romney, who voted in her favor, Republicans walked out. That was after Senator Rand Paul held up the proceedings for some 20 minutes. He was nowhere to be found initially.

  And then Senator Lindsey Graham, because he wasn't improperly dressed, didn't have a necktie, had to shout his vote from the Cloak Room. This is the moment I was speaking of earlier, where the — you could just see the applause in the room. And the Republicans found their way out through the door there.

  What are we to make of that display, David, by the Republicans?

• David Brooks:

  Well, welcome to America in 2022.

  If you're a Republican and conservative or a Democrat, and I'm sure I'm several notches to the right of coming Justice Jackson Brown — or Brown Jackson, it's still a day to celebrate. It's — to move from segregation to Supreme Court in one generation is pretty phenomenal, and a sign of a larger success. And we should all be happy.

  I saw a great picture on Twitter of Cory Booker, senator from New Jersey, hugging Sherrilyn Ifill from the NAACP Legal Defense Fund, and just the joy on their face was radiating.

  Until 1981, every single Supreme Court justice was a white guy. And now white guys are the minority on the Supreme Court. So, this is just a day — you could disagree, and you could be a Republican, and you're going to vote against the Democratic-appointed nominee. Sure. That's politics.

  But after the vote is over, after she's been confirmed, have a little celebration for America. We're even letting Protestants back on the Supreme Courts, even Catholics and Jews, until recently. So…

  (LAUGHTER)

• David Brooks:

  So, I do think there has to be a moment, whatever your partisanship where you lay partisanship aside, and see national progress and national celebration.

• Geoff Bennett:

  And, Jonathan, as you well know, the White House wanted a bipartisan confirmation vote. In the end, they got three Republicans, Collins, Murkowski and Romney.

  Does it matter? Does it matter that there were Republicans who voted in favor? Because, as you know, Democrats could have done this with 50 votes, plus Vice President Harris breaking the tie.

• Jonathan Capehart:

  I do think it was important, particularly for the first Black woman to be on the court, for there to be a bipartisan stamp on her confirmation, no matter how many Republicans were there.

  We should keep in mind that her 53-47 vote with three Republicans is a better showing in terms of bipartisanship than what the previous justice who was confirmed, Justice Amy Coney Barrett, got. She got zero Democratic votes for her confirmation.

  So, the fact that Justice — sorry — that Judge Ketanji Brown Jackson will head to the court with three Republican votes, I think, is a good thing.

  In the grand scheme of things, though, what I worry about, Geoff — excuse me — is not so much who voted for her confirmation. I'm worried about what was said about what's going to happen if there's another Supreme Court nomination for President Biden.

  Senator Lindsey Graham saying, if the Republicans take over the Senate after the midterms, a nominee would not get a hearing. Senate Minority Leader Mitch McConnell following that up yesterday by saying the exact same thing. That, to me, are the dark clouds hanging over our democracy. That's much more important to worry about than Judge Jackson only getting three Republican votes in her confirmation, which I think is a good — a good showing, considering how broken things are in Washington these days.

• Geoff Bennett:

  David, I want you to weigh in on that point.

  And I will also mention that I was struck by the fact that Senators Collins and Murkowski use their statement in support of Judge Jackson to say that they believe that the Supreme Court confirmation itself — the Supreme Court confirmation process itself was broken. Do you share that view?

  And, if so, what's the prescription to fix it?

• David Brooks:

  It's broken even by Washington standards.

  I went back. Sandra Day O'Connor 1981 gets confirmed 99-0. It used to be 70 or 80 percent. And it used to be the test is, does the person have a judicial philosophy that's roughly within the mainstream? Is the person a person of wise temperament? That used to be the test.

  Those issues are now basically off the table. For Justice — in this process, it's clear she has a judicial temperament. She's got a phenomenal temperament. And I have been so impressed with her handling really rough circumstances a few weeks. It's clear her judicial philosophy.

  But this thing has turned into a culture war. And it's about senators using their moments on TV to raise whatever culture war issue happens to be on Tucker Carlson's show that week. And that's what we saw in these confirmation hearings.

  And it really is — it's — the core thing that's happened in Congress and last five years, I would say, is that it's no — you don't go to Congress to pass legislation. You go to Congress to get on TV. It's become a performative act.

  And, frankly, the way you get power in Congress these days is to do what AOC did. You get — you get — build up a public platform, and then everybody has to listen to you in Congress. There used to be a distinction between showboats, the people who wanted to be on TV, and workhorses.

  And that distinction is gone, because the number of workhorses is minimal.

• Geoff Bennett:

  Too many showboats, not enough workhorses. I'm writing that down in my notes.

  (LAUGHTER)

• Geoff Bennett:

  As we talk about the Supreme Court, of course, as you know, one of the major cases sitting before the court right now is abortion access.

  And Oklahoma lawmakers have approved a bill that would make performing an abortion a felony, except in the case of a medical emergency. And Oklahoma really is just the latest Republican-led state to enact new restrictions on abortion access, Jonathan, Oklahoma following in the footsteps of Texas.

• Jonathan Capehart:

  Yes.

  When President Clinton was in office, he had the mantra that he wanted — abortions in this country should be safe, legal, and rare. And I think that is a sensible — a sensible mantra.

  But the Supreme Court's decision to let that unbelievable Texas law to go into effect while under legal challenge, I think, is what set off this arms race between blue states and red states when it comes to abortion, Oklahoma, Texas, Missouri, all trying to restrict a woman's right to choose. And you have blue states that are democratically led states that are looking to codify Roe v. Wade, in anticipation of the Supreme Court doing — either wholly overturning Roe v. Wade or gutting it in the way that they did the vote the Voting Rights Act, where it's a statute, but you can't you enforce it.

  And so I think what we're in for until the Supreme Court makes its decision, makes its decision final, we're going to keep seeing this happening. And then once the Supreme Court does what we think it's going to do, then God only knows what's going to happen in the states.

  But this much, we do now. And this is why everyone is so concerned about the future of Roe. When President Trump was running for president, he said on the campaign trail and as president that he would appoint just assists with the Supreme Court who would overturn Roe vs. Wade.

  He got three Supreme Court justices placed on the court. That's why we're having this conversation. And even though we're just speculating about what would happen, with a 6-3 majority — conservative majority on the court, Roe is in danger. And that's why these states, red and blue, are moving fast in terms of their philosophy on Roe to do whatever it is they're going to do on abortion rights access — or abortion access.

• Geoff Bennett:

  David, in the couple of minutes we have left, what do you make of that point, that one of the reasons why conservative states are moving forward with these pre-viability — pre-viability bans is not that they are afraid of legal challenges?

  They welcome legal challenges, because that's the fastest way to get this to the Supreme Court, where they think that they will have a friendly audience.

• David Brooks:

  Yes, it's certainly the case the legal scholars I know think Roe is on the way out.

  I — whatever one thinks of the underlying issue of abortion, I do think it has been politically corrosive for our country that a solution was imposed by unelected officials from the top down. And so I had always thought, if we get out of Roe, we can actually have a conversation about abortion, and we would probably have different states winding up with different solutions.

  And there was some possibility, at least 10 — until 10 or 15 years ago, that we would wind up somewhere where some of the European countries are, with some restrictions and different levels of restrictions, but somewhere in the middle. And I think that would have been an ideal circumstances 10 or 15 years ago.

  The underlying problem with that hope right now is that the states are polarizing. For whatever reason, states have become one-party rule. And within those one-party legislatures, the people on the farther left or the farther right seem to exercise total control, at least on this issue. And so you get these laws that are polarized one way or the other.

  There's still some possibility that that middle position, where — which is where roughly 51 percent of Americans are, which would allow abortion up until a certain time, and then taper it off and make more — make it harder later into the pregnancy.

  John Roberts seems to be wanting to head toward that solution. At least he's made some indications in that direction. The problem is, he may be a minority one on the court right now. And so we seem to be heading on abortion, as in so many other issues, to polar extremes, two countries, two value systems, non-overlapping views.

• Geoff Bennett:

  Well, a split country.

  David Brooks and Jonathan Capehart, appreciate you both for your insights on this Friday. Have a great weekend.

• Jonathan Capehart:

  Thanks, Geoff.