It’s funny how Fox legal analyst Jonathan Turley’s Very Serious Analysis of Ketanji Brown Jackson’s nomination to the Supreme Court fits right in with the right-wing smear campaign.
Turley wrote a February 26 column for The Hill about Jackson that pretty much guaranteed Turley his friendly chat with Tucker Carlson a few days later. Notice how Turley makes a point of arguing that it’s not Jackson’s fault he’s so upset about the nomination of the first Black woman to the Supreme Court but President Joe Biden’s.
That decision [to nominate Jackson] follows Biden's unnecessary, unprecedented pledge to consider only Black females for a vacancy on the court — the very type of threshold criteria that the court has declared unconstitutional or unlawful for schools or businesses. (Jackson herself previously rejected Biden's premise for imposing his threshold racial and gender exclusion, stating during her appellate confirmation hearing that “I don’t think that race plays a role in the kind of judge that I have been and would be.”)
With a sterling academic and professional resume, she deserved a much better framing and timing for her nomination.
But then Turley goes on to suggest she really doesn’t deserve the nomination after all. He claims she has an “extremely limited written record to review,” that she has given “obscure and conflicted” responses on the subject of “unenumerated rights” in the Constitution, and that she has “faced pushback for exceeding her constitutionally or statutorily defined role in cases.” (There’s a scathing critique of these allegations by Joe Patrice, in Above the Law.)
By wild coincidence, I’m sure, Turley’s criticisms are in sync with the right-wing smear campaign against Jackson: It claims that her nomination is little more than payback to “far-left special interests.” In fact, Turley's column was titled, “Wink-and-a-nod nomination: Who really is Ketanji Brown Jackson?”
Sure enough, Turley was on the Tucker Carlson Tonight show Tuesday night. And while he offered his Very Serious Concerns About Biden’s racial transgressions, he seemed to have none at all about Carlson’s overtly racial and ethnic demagoguery.
On TV, Turley continued to claim he was concerned about the unfairness of it all to Jackson.
TURLEY: You know, it's really striking how unnecessary this was, how unprecedented it was and how unfair it was to the nominee.
You know, [Biden] could have said, like, past presidents have said that he would like an African-American or a woman on the Court, but he expressly said that he would consider no one else, except people that fit that threshold criteria.
And what's ironic about it is that you couldn't do this type of threshold exclusion if you were a school or a business. The Supreme Court has declared that unconstitutional or unlawful.
Now, the reason it's unfair is that Judge Jackson is a remarkably accomplished jurist. She's been on the court for a long time. She has a stellar resume, a stellar reputation.
She didn't deserve this. This wasn't of her making, and I think she would have been on the short list without that type of threshold criteria.
By the way, Turley must think Jackson is too stupid to know she is being taken advantage of because she seems utterly thrilled to have been nominated.
Carlson didn’t just approve of Turley’s remarks, he suggested that Turley’s thinking was part of the American Way:
CARLSON: So, I think everything you said is not only reasonable, but also consistent with like the American ethic, in every way.
And then “just thinking of Jackson” Turley went on to suggest she’s some kind of stealth, far-left plant:
TURLEY: The fact is that we don't know a lot about her judicial philosophy. There are only a few of these opinions where she delves deeply into these issues. But also when she was an appellate judge, she declined to answer the question put to her whether she follows the type of living Constitution approach of many on the left.
But Carlson wanted to make the conversation more explicitly racial.
CARLSON: Look, I don't know her and I want to think the best because she is likely to be on the Supreme Court. But I have to ask you an honest question. If a president, maybe the next president said, “I'm looking for a white guy between 50 and 60 for the Supreme Court: Jonathan Turley.” Would you feel patronized? I mean, would you accept that job? Or would you feel too patronized? Too diminished to accept?
That was no honest question, it was a prod to paint Biden as anti-white and to diminish Jackson as a racial pawn. Apparently, Carlson must also think she’s too stupid or too lacking in self-esteem to have accepted the nomination, too.
Again, Turley reverted to his concern trolling:
TURLEY: Well, I think that's -- well, Tucker, I think that is part of the problem here because she didn't deserve this. She earned a right to be on the short list. She has a very accomplished background.
She has many people who just think the world of her, and this was done in a primary debate when Biden was told by Representative Clyburn that he wanted him to make this pledge. He walked out and made it. But he didn't say, I intend to look for an African-American woman. He instead said, I'm only going to consider African-American women.
And that's when many of us went "Whoa," you know, that's different from what has happened in the past.
So if Jackson “earned a right” to be nominated and all would have been well if only Biden had said, “I intend to look for an African-American woman,” then this is really a whole lot of noise about nothing.
But we know what it’s really about.
As for Carlson, Turley probably wasn’t inflammatory enough. He ended the discussion shortly after those last remarks by Turley.
You can watch it below, from the March 1, 2022 Tucker Carlson Tonight.
I predict that KBJ will even get a few Republican votes since they know that it will cost them nothing to have her on the court and that it will virtue signal their non-racism and non-ultra partisanship.
I need to write about Tucker Carlson trying to cook up a scandal about LSAT scores. I hope to get to that tomorrow or Sunday. Believe it or not, I’m still in back pain hell, though I think I see light at the end of the tunnel (knock wood). Words cannot express how it has impaired me both physically and mentally.
First, Ellen is absolutely right to note that Turley is playing the usual “serious thinker” ruse to support the latest angry Right Wing propaganda. As we noted when Stephen Hayes and Chris Wallace fled Fox News for actual journalism outlets, there’s a long history over the past 25+ years of paid “analysts” on Fox doing their part to support the Line of the Day. The line is usually heard from the first Fox News AM host, as well as from the earliest morning AM right wing shock jocks (Glenn Beck keeps trying to be “the guy” for this) as to how to spin whatever is happening in the world. One day the Line may be about how great Ronald Reagan was at (fill in the blank). Many other days the Line will be about how great the Pence White House supposedly was for America, even if its childish former spokesman kept distracting everyone with his mean tweets. (The reality – that the Pence White House was an unmitigated disaster and the childish spokesman’s mean tweets were openly encouraged and enjoyed by Angry Right Wingers throughout – somehow always goes unspoken) Throughout the 2 terms of the Obama White House, the Line was often about how whatever President Obama said or did that day was a failure or criminal or both. These days, that approach has been modified to say that whatever President Biden said or did that day reflects that he is supposedly senile, criminal, or a failure – or all three at once. So one supposes that Fox News is getting more nuanced in its smears. The purpose, then, of a “serious thinker” like Turley is to put a veneer of sage respectability on the smears. So he’ll offer a column and a few talking head appearances on angry Right Wing outlets and cite a couple of cherry-picked stats and then take a solemn “ethical high ground” tone to tut-tut about whatever feigned outrage the Right wants its base to be riled up about.
In the case of the almost certain upcoming confirmation of Judge Ketanji Brown Jackson in the Breyer seat, the reality does not give angry Right Wingers much in the way of red meat – apart from her ethnicity and gender. Jackson’s record as a judge and previously as a public defender is one of moderation – she’s recommended some common sense reforms to criminal sentencing, and her approach has been to work with both Dems and Republicans to accomplish that. As a result, she’s supported by the usual Dems for a Dem nominee but also by GOP stalwarts like the Fraternal Order of Police. She appears to be very much in the mode of Breyer, who was known as a moderate who reached across the aisle to achieve consensus whenever he could. (And let’s not forget that she clerked for Breyer) Angry Right Wingers have attempted to paint Breyer as “Far Left” but that’s actually far from the truth. Breyer was and is enough of a centrist that Orrin Hatch and Strom Thurmond openly supported him when his nomination to the SC was announced by President Clinton in 1994. But times have changed since 1994, so a moderate centrist like Breyer or Jackson is somehow now to be seen as “Far Left” while Far Right idealogues like Gorsuch, Kavanaugh and Barrett are supposedly mainstream. We must keep in mind that replacing Breyer with Jackson will not make any change in the makeup of the Court – in terms of the political leanings of individual jurists (she’s close to Breyer in her thinking) or in terms of the balance of the Court (it remains firmly packed to the Far Far Right, with 3 moderate Dems, 1 Hard Right Chief Justice in the Rehnquist mode and 5 Very Far Right extremists in a solid majority). The court rulings will not change a whit with the introduction of Judge Jackson; we’ll see the usual 6-3 or 5-4 rulings to the Far Right, only with one of the dissenters having the name Jackson rather than Breyer. And the real change we’ve seen with the new 5 Far Far Right majority will continue apace – that there will likely be very little consensus as this majority sees no need to entertain the ideas of anyone not on the Far Right. Offbeat rulings like today, where Gorsuch suddenly joined with Sotomayor for his own reasons are now isolated exceptions.
Regarding Biden’s laudable step to finally name the first African-American female to the High Court, it actually was necessary to do it, particularly after the openly hateful record of the Pence White House in its packing of the judiciary over the prior four years. In over 200 judicial appointments to federal benches, the Pence White House, outsourcing the selections to extremist advocates at Heritage Action and the Federalist Society, included a grand total of 8 African American, 8 Chicano, and 13 Asian-American, with not even a single African American nominated for an appellate court. This means a staggering tilt of 85% white judicial appointees overall, to go with an equally staggering tilt of 75% male judicial appointees by Mike Pence. Appointing an African-American female is frankly the least the Biden White House could do. (And this was only part of Mike Pence’s pushback on any sense of living in the 21st century – the appointments made for all staff, cabinet and intern positions were staggeringly tilted to White Males.)
Regarding Turley’s attempt to find a “serious thinker” justification to dismiss Judge Jackson, his comments are nonsensical on their face. If Turley wants to discuss an “extremely limited written record”, then he must have had the identical objection to Amy Coney Barrett when she was being frantically rammed onto the High Court. And he must have also objected to David Souter, who actually did have a sparse written record when he was appointed by George Bush – and that sparsity was weaponized by Right Wingers at that time. (The Right had hoped to sneak Souter in as a stealth nominee who would emerge as a Hard Right riposte to William Brennan. When liberal groups objected to Souter and noted the game the Right was playing, they received condescending lectures about how they were supposedly prejudging Souter without evidence. Of course, Souter actually turned out to be an Independent, which pushed the Right to pre-screen their subsequent judicial picks at a much more exhaustive level.)
Turley tries to imply that Judge Jackson is constantly being chastised and overturned. That’s also false. In fact, she has about a 2% reversal rate, which is far below a number that would cause actual concern. (And in fact both Gorsuch and Kavanaugh had very real issues in this area, which did not bother Turley.)
And let’s not allow Turley to get away with that below-the-belt shot about how a living Constitution approach is just something favored by “some on the left.” That’s a flat-out False Premise. Full Stop. The notion of the Constitution being a living, breathing document is as mainstream as the notion of separation of powers. It’s a fundamental truth about our country that has been taught in basic Social Studies classes to elementary school kids for over a century. The only people who don’t hold to that idea are the angry Right Wingers who turned to the Borkified idea of “originalism” as a way to argue for the illegitimacy of all Supreme Court decisions they personally dislike. In their view, the Constitution is frozen until someone has a Convention of the States to make an amendment, and no interpretation is allowed unless the Framers explicitly discussed that point of view. This is a pernicious aspect of the approach of “serious thinkers” like Turley. They want you to think that their Far Right opinion about Constitutional Law is the only way to see the Constitution – rather than what it really is – a Far Right opinion.
When we get to the actual core of the objections of angry Right Wingers here, it’s plain to see. It is not about any faux “concern” about giving everyone a chance. It’s about staying with an angry vision of “America – the way it oughtta be!!!” as unrepentant bigot Rush Limbaugh would say. A world where White Men get to lay down the law, White Women stay in the kitchen, and where everyone else better keep their heads down if they know what’s good for them. Judge Jackson’s transgression against the Right Wing is that she had the temerity to excel in the law while being African American and female. One supposes that the angry Right Wingers’ attempts to cloak their bigotry as “concern” actually shows the culture to perhaps be a little healthier now than during the miserable epoch of the Pence White House. If these guys were able to practice their hateful bigotry openly, as they did for much of 2017-21, there would be no need for Turley to help them play these games.