If confirmed, she would be the first Black woman to serve on the nation's highest court, and she would be one of four women on the court, the largest number ever to serve at one time.

Transcript

A MARTINEZ, HOST:

The Senate Judiciary Committee opens hearings today on the nomination of Judge Ketanji Brown Jackson to the Supreme Court. If confirmed, she would be the first Black woman to serve on the nation's highest court. NPR legal affairs correspondent Nina Totenberg has this preview.

NINA TOTENBERG, BYLINE: The thesaurus has no synonyms for the phrase confirmation hearing. That's because it's a unique beast. Unique because it's like no other. And beast because when it comes to a Supreme Court nomination, it is treacherous for the nominee while offering enormous opportunities for her questioners. Judge Jackson's lengthy and diverse background as a lawyer and judge seems to have defused any notion that she's not qualified. And so far, Republican leaders have taken only indirect swipes at her. Here, for instance, is Senate Republican leader Mitch McConnell.

(SOUNDBITE OF ARCHIVED RECORDING)

MITCH MCCONNELL: We're in the middle of a violent crime wave, including soaring rates of homicides and carjackings. Amid all this, the soft-on-crime brigade is squarely in Judge Jackson's corner.

TOTENBERG: Note that he didn't actually say anything about Jackson herself. That may be because Republicans know the optics of personally attacking a Black woman are less than ideal, not to mention that Jackson comes from a family of law enforcement officers and has been endorsed by the Fraternal Order of Police. It is Jackson's record on the bench - eight years as a trial judge and eight months on the court of appeals - that will likely be the focus of these hearings. Republican Senator Josh Hawley last week got a head start, tweeting a series of posts that said Jackson has, quote, "an alarming pattern" of sentencing child pornography offenders to prison terms that are below those recommended by the government. But White House Press Secretary Jen Psaki adamantly disputed that assertion.

(SOUNDBITE OF ARCHIVED RECORDING)

JEN PSAKI: The facts are that in the vast majority of cases involving child sex crimes broadly, the sentences Judge Jackson imposed were consistent with or above what the government or U.S. probation recommended.

TOTENBERG: Some Republicans on the committee are likely to be particularly hostile to Jackson, among them Hawley of Missouri, Tom Cotton of Arkansas and Ted Cruz of Texas. It's no accident that all three senators harbor presidential ambitions. And for them, as well as others on the judiciary committee, including Democrats, these hearings are their time to shine. As NYU Law Professor Melissa Murray puts it...

MELISSA MURRAY: Often, these hearings become kabuki theater, where the senators get to play out various soundbites that are later repurposed and repackaged.

TOTENBERG: That said, the Senate does have the constitutional authority to advise and consent to Supreme Court nominations. And in modern times, at least, that means trying to find out what a nominee's views are and sometimes to discredit her. That could be difficult if past is prologue. Certainly, the Trump and Obama Supreme Court nominees were well-schooled in saying very little. And Judge Jackson is no newbie to confirmation hearings. This is her fourth. Although, this one is definitely in a different league. Conservatives, in particular, want to know if she interprets the Constitution as its words were understood at the time it was adopted. Or does she view the Constitution as a statement of broad principles that can be applied to modern times?

JOHN MALCOLM: I've been very surprised at what I consider to be her evasiveness in terms of talking about whether she has a judicial philosophy.

TOTENBERG: John Malcolm, a vice president of the Conservative Heritage Foundation, points to Jackson's testimony last year when she was nominated to the D.C. Court of Appeals.

MALCOLM: She said that she doesn't have a judicial philosophy, per se. I find that very surprising for somebody who went to Harvard Law School, clerked for three federal judges, including a justice, and has been a sitting judge at the time for eight years now. You would think that she would have some kind of judicial philosophy.

TOTENBERG: But as conservative libertarian Erik Jaffe observes...

ERIK JAFFE: Given the constraints on district court judges, the obligation to follow precedence, how can you tell what a judge or justice will do once given a certain measure of discretion based upon what they did when they didn't have discretion? And the answer is, you really can't. We don't know.

TOTENBERG: There are, of course, some interesting Jackson decisions, most prominent was a decision ordering President Trump's former White House counsel, Don McGahn, to appear before the House Judiciary Committee to testify in its probe of alleged Russian interference in the 2016 elections. Presidents are not kings, she wrote. That means they do not have subjects bound by loyalty or blood, whose destiny they're entitled to control. Eventually, McGahn did testify in 2021 after the Justice Department, by then under the control of the Biden administration, reached an agreement with the committee on the terms of the testimony.

Jackson has also authored some other interesting opinions. In one case, for instance, ruling that the use of the F-word at a protest rally was not grounds for arrest. But, as in so many of her cases, the decision was ultimately about a different issue. The fact is that the federal courts in Washington, D.C., do not generally deal with huge, public controversies. Their bread and butter instead is administrative law. What regulations are permissible? Can they be changed by the executive branch? How and under what circumstances? Or, as Professor Murray puts it...

MURRAY: There is a way in which she has been engineered for this moment. She has been a judge on two courts that deal primarily with the sort of arcane administrative law issues that don't touch on hot-button questions that could be fodder in confirmation hearings. Their docket is super boring.

TOTENBERG: So don't be surprised if senators focus on Jackson's years as vice chair of the U.S. Sentencing Commission and her clients when she was a lawyer. Last April at her appeals court confirmation hearing, Senator Cruz asked her about a brief she filed in one of the Guantanamo detainee cases, a brief on behalf of judges arguing that evidence obtained by torture should not be admissible.

(SOUNDBITE OF ARCHIVED RECORDING)

TED CRUZ: But did you agree with the position you were advocating?

KETANJI BROWN JACKSON: I didn't have a personal view, really, other than just to make sure that I was making the most convincing argument that I could make on behalf of my clients.

TOTENBERG: Today will be her easiest on the witness stand. All she has to do is read an opening statement after the senators make opening remarks. But over the following two days, if the senators use up all their time, she'll be answering questions for more than 18 hours - a marathon. The one saving grace for every nominee is that the more the senators talk, the less time there is for the nominee. And in this case, silence is truly golden.

Nina Totenberg, NPR News, Washington.

(SOUNDBITE OF FK'S "SILENCE") Transcript provided by NPR, Copyright NPR.