(The Hill) — Republicans on the Senate Judiciary Committee didn’t use their marathon question-and-answer session with Judge Ketanji Brown Jackson to challenge her about two high-profile decisions she issued that went against former President Donald Trump.
Instead, their focus was on other issues, a shift that marks the latest sign that Senate Republicans see Trump as more of a liability than an asset heading into the 2022 election.
While some Senate Republican candidates are clamoring for Trump’s endorsement in this year’s primaries, Senate GOP incumbents don’t want to inject the former president into the national conversation ahead of the midterm elections, fearing he could turn off moderate swing voters.
Republican strategist Vin Weber said Republican lawmakers believe they’re in good position to win control of the House and possibly the Senate in 2022 and the White House in 2024 because of President Joe Biden’s unpopularity and don’t want to blow their chances by turning either election into another referendum on Trump.
“Republicans believe there is very little that can screw up a new Republican majority but there are a couple of possibilities: One is a completely unpredictable external event, the other is Donald Trump,” he said. “As Republicans assess the risk out there, that is one possible risk factor.
“Republicans have a real interest in not elevating the Trump issue, if you will, whether it be advocating for him or defending his actions,” he added. “That’s a lot of what you saw in the Supreme Court hearing, a desire not to draw attention to Trump.”
Jackson, a D.C. Circuit judge and former D.C. district judge, ruled in cases related to two sensitive issues related to Trump: allegations of Russian involvement on Trump’s behalf in the 2016 election and the former president’s role in provoking the Jan. 6 attack on the Capitol.
Some conservative strategists identified Jackson’s rulings in Judiciary v. McGahn and Thompson v. Trump as two that deserved scrutiny, especially her opinion in the first, where she declared, “Presidents are not kings,” which was later overruled on appeal.
Jackson took a direct shot at Trump’s often-stated claims of executive privilege to rebuff attempts by Congress and other investigators to subpoena his associates or key documents.
“This Court holds that Executive branch officials are not absolutely immune from compulsory congressional process — no matter how many times the Executive branch has asserted as much over the years — even if the President expressly directs such officials’ non-compliance,” Jackson wrote in her November 2019 decision rejecting Trump’s attempt to prevent former White House Counsel Don McGahn from testifying before the House Judiciary Committee.
Conservative activists thought Jackson’s rhetorical flourish contrasting presidents to kings went beyond what was warranted and could be interpreted as a sign of activist political leaning that made her attractive to the liberal dark money groups that pushed her nomination.
Harvard Law School professor Alan Dershowitz, who defended Trump in both of his Senate impeachment trials, criticized Jackson’s reasoning, writing in the Hill that she “does not seem to understand how our constitutional system of checks and balances is supposed to work.”
“In straying well beyond her role to decide only the cases and controversies before her, Judge Jackson has tilted the balance against the executive branch and in favor of the legislative branch,” he argued, claiming her opinion should have been rendered in a five-page opinion instead of a 118-page “historical essay.”
Jackson’s ruling in Judiciary v. Trump was a potential vulnerability for the nominee because it was later overturned by the D.C. Circuit Court of Appeals, which ruled the House committee lacked a sufficient cause of action.
Thomas Griffith, a George W. Bush-appointed judge, wrote in the 2-1 majority opinion that Article I of the Constitution does not create a “judicially remediable right” to enforce a congressional subpoena against the executive branch.
Weber said the lack of interest in arguing Trump’s cause during the Supreme Court confirmation hearing is one of several recent examples that show Trump’s influence on the party is slipping.
One big development came last month when former Vice President Mike Pence, who had been careful to toe the president’s line during his four years in office, rebuked him for claiming he had the power to overturn the results of the presidential election on Jan. 6.
Pence delivered a more veiled criticism of Trump’s praise of Russian President Vladimir Putin when he declared this month: “There is no room in this party for apologists for Putin.”
Another sign of the complicated politics of being allied with Trump was Rep. Mo Brooks’s (R-Ala.) decision to distance himself from the former president by urging him to put the 2020 election in the past. That prompted a furious Trump to accuse Brooks of going “woke” and rescinding his endorsement.
A recent Gray TV/Alabama Daily poll showed Brooks a distant third in the primary behind Mike Durant and Katie Britt.
“If he understands that Republicans don’t benefit by talking about the 2020 election, believe me, everyone else does too,” said Weber, alluding to the prominent role Brooks took in calling for the election results to be challenged at the Jan. 6 joint session of Congress to tally the Electoral College vote.
The D.C. Circuit’s ruling against Trump’s effort to block the House Select Jan. 6 committee from obtaining records from the National Archives was more successful. The Supreme Court last month rejected a petition by Trump to overturn that decision.
In that case, Jackson joined the majority opinion, which was written by Judge Patricia Millet, an appointee of former President Barack Obama.
The lack of interest among Senate Republicans in rallying to Trump’s defense once they had a judge who ruled against him twice in high-profile political cases reflects a broad desire to move onto new issues and bury Trump’s old grudges in the past.
Senate Minority Leader Mitch McConnell (R-Ky.) and GOP Whip John Thune (R-S.D.) have repeatedly urged their colleagues to focus on fighting Biden’s agenda instead of relitigating Trump’s claims about election fraud in 2020.
Sen. Thom Tillis (R-N.C.) said he didn’t plan to ask Jackson about the McGahn decision because he covered that with the nominee when she appeared before the committee last year as part of her confirmation to the D.C. Circuit Court of Appeals.
Brian Darling, a GOP strategist and former Senate aide, said Jackson’s rulings against Trump didn’t really show her to be a nominee outside the mainstream and that other elements of her record are more telling.
“Those cases didn’t really help the cause of defeating the nominee. I just don’t think that those cases spoke enough to the idea that this idea is out of the mainstream,” he said.
He noted that rising conservative stars on the committee, Sens. Ted Cruz (R-Texas), Josh Hawley (R-Mo.) and Tom Cotton (R-Ark.), appeared to be more interested in their own presidential ambitions than fighting Trump’s old battles.
“There’s no doubt that when you look at Cotton, Hawley, Cruz, they’re all engaging in getting 2024 teed up if Trump doesn’t run,” he said.