“Though we do not believe that religious faith should be a test for any federal office, as faculty at a law school whose sponsoring church endured persecution by the federal government, we find it worthy of note that Judge Jackson understands and values the freedom of religion ,” said the letter, which argued that Jackson would be a “distinguished appointment” to the Supreme Court.
Although the letter from the prominent Utah school had a half-dozen recipients, it seemed tailored to one in particular: Sen. Mitt Romney, the state’s junior senator and 2012 GOP presidential candidate whose public platform and stature is far wider than his relatively short Senate tenure would suggest.
Just days ahead of Jackson’s likely confirmation this week, Romney remains one of the most intriguing holdouts on her nomination, sending clear signals that he is weighing not just Jackson’s qualifications and legal philosophy but also the historic nature of her nomination as the first Black woman who would serve on the Supreme Court.
Romney’s stated openness to Jackson is all the most striking since last year he opposed his nomination to the US Court of Appeals for the DC Circuit, considered the second-most powerful court in the nation and a de facto training ground for Supreme Court justices. As the BYU letter suggests, his posture is notable for another reason: A member of the Church of Jesus Christ of Latter-day Saints, Romney has placed a particular value on religious freedom.
“I think he’s sincerely and genuinely looking at it,” said Sen. John Thune (SD), the Senate’s No. 2 Republican, who has had conversations with Romney about Jackson. “He’s hearing a lot clearly from our members who are close to it, but he’s an independent person and he’s going to come to his own conclusion.”
When the Senate Judiciary Committee votes on Brown’s nomination Monday, it is almost certain to split along party lines, resulting in an 11-to-11 deadlock. That would force Senate Majority Leader Charles E. Schumer (DN.Y.) to move to discharge Jackson’s nomination from the committee to the floor, and the resulting final confirmation vote would probably occur Thursday or Friday.
So far, Sen. Susan Collins of Maine is the only Republican to announce that she will join the Senate’s 50 Democrats and independents in voting to confirm Jackson. While that makes Jackson’s confirmation almost certain, the White House would like to persuade as many other GOP senators as possible to join Collins.
In deliberating on Jackson’s nomination, Romney has made it clear he is unpersuaded by arguments that have swayed his fellow Republicans. Many GOP senators have coalesced behind the view that Jackson, as a trial court judge, was too lenient in sentencing child pornography offenders, although experts have said Jackson’s record was in line with the norm. Romney has said GOP senators’ aggressive questions on that subject were “off course” and that there was “no ‘there’ there.”
In an interview with CNN Plus that aired last week, Romney was even more critical.
“Some colleagues on my side of the aisle, I thought, asked respectful questions, and were able to elicit responses from her that I think were very helpful to those that are making an evaluation,” Romney said. But he added, “I thought some were preparing for their presidential campaign and were, if you will, doing the things you have to do to get on TV, which I think is unfortunate.”
At least three Republican members of the Senate Judiciary Committee are considered potential presidential candidates: Sens. Ted Cruz of Texas, Josh Hawley of Missouri and Tom Cotton of Arkansas. Hawley was particularly persistent in pressing Jackson on her sentencing record.
One of Jackson’s earliest endorsers was retired DC Circuit judge Thomas Griffith, who once served as general counsel of Brigham Young University and, like Romney, is a member of the Church of Jesus Christ of Latter-day Saints.
Griffith formally introduced Jackson at her confirmation hearing. “I have always respected her careful approach, extraordinary judicial understanding, and collegial manner, three indispensable traits for success as a Justice on the Supreme Court,” Griffith wrote in a letter to the Judiciary Committee almost immediately after Jackson’s nomination.
Shortly after that letter was made public, Romney said he was “impressed” by Griffith’s words. “He knows her,” Romney said at the time. “That was a very powerful and useful endorsement.”
The BYU law professors, in their letter, cited one of Jackson’s decisions as a district court judge — Tyson v. Brennan — in which she sided with a Christian plaintiff who sued after he was reprimanded for playing gospel music at work, while secular music was allowed. One of the professors who signed the letter was the school’s Marion G. Romney professor of law, a position named after a cousin of the senator’s.
“At the confirmation hearings on her nomination as a federal appellate judge, she declared her support for the freedom of religion, calling it a ‘foundational tenet of our entire government,’” the professors added.
Romney, however, has kept his thinking on Jackson tightly held, especially after the close of the confirmation hearings and his meeting with her. He praised the nominee as “intelligent, capable and of course, as you know, a charming person” after they met, saying that they spent most of their time on Tuesday discussing her judicial philosophy.
Romney said he would probably not announce his decision on Jackson until the day of the confirmation vote, and he told reporters on Thursday that he would delve into his writings and legal decisions as he continues to deliberate this weekend.
Romney’s support is urgently coveted by the administration, since he is one of the very few senators whose vote is in play, despite his opposition to his appeals court nomination and his record of infrequently supporting President Biden’s judicial picks. Of the nearly 60 federal judges confirmed so far in the Biden presidency, Romney has supported 10, according to a Washington Post review.
He was one of a handful of Republican senators who received a personal phone call from Biden after Justice Stephen G. Breyer announced his retirement, though he does not sit on the Judiciary Committee and does not have a long history of voting for Supreme Court nominees. Elected to the Senate in 2018, Romney has voted on just one Supreme Court pick, supporting President Donald Trump’s nomination of Amy Coney Barrett in October 2020.
In the call with Biden, Romney said, he urged the president to select a nominee in the mold of Breyer, who was known as a consensus-builder despite his reliably liberal positions. Biden, in choosing Jackson, settled on a former Breyer clerk whose background and approach resembles that of his mentor.
Shortly after Jackson was nominated, Romney told reporters that while he and Breyer differed on judicial philosophy, the senator believed that the justice played a “legitimate role” on the court and that he would have supported Breyer had he been a senator in 1994 when Breyer was nominated.
Romney has said he opposed Jackson to the appellate bench last year in part because he did not have a chance to sit down with her at that point to discuss her philosophy and record, adding that the historic nature of her nomination also merits a fresh look.
“If she is in the mold of, if you will, a center-left Democrat, that’s probably the type of mold I could support,” Romney said of Jackson in early March. “On the other hand, if she is beyond the normal range of Democrats and the Democratic Party, that’s something that I would find a bridge too far.”
From the moment Jackson’s nomination was made official, the White House has taken pains to promote her bipartisan credentials and support, a message apparently aimed particularly at Romney, Collins and Murkowski.
It’s unclear how much the various arguments are directly affecting Romney, who has emphasized that his main focus when it comes to Jackson is his judicial philosophy. When quizzed about this repeatedly during her confirmation hearings, Jackson usually described her judging method: Start from a neutral position, absorb all of the relevant information in a case, and then apply the law to make a decision.
“My judicial philosophy is to rule impartially and to rule consistent with the limitations on my authority as a judge,” Jackson told senators. “And so, my methodology actually helps me to do that in every case.”
Romney may have to disclose which way he’s leaning as early as Monday, when the Senate votes on Schumer’s procedural measure to bring Jackson’s nomination to the floor. Although some senators have voted differently on procedural and final confirmation votes, Romney generally has not.
White House officials stress that they are not taking any vote for granted. Democratic senators who have close relationships with their GOP colleagues have been courting them for weeks, in hopes of winning Jackson more than just one Republican vote in her favor.
“I’ve talked to a lot of Republican senators,” Senate Judiciary Committee Chairman Richard J. Durbin (D-Ill.) said recently. “Until they tell me face-to-face that they’re voting yes, I won’t count them. We’re still working.”
Mike DeBonis contributed to this report.