Senator Tom Cotton treated those cursed to be watching Supreme Court nomination hearings on a Tuesday evening to a truly bizarre exhibition. It was clear that, despite suggestions in the New York Times that Senate Republican honchos would lead a respectful process, at least three members of the caucus had drawn straws to see who'd get which ghastly line of attack on Judge Ketanji Brown Jackson. Ted Cruz secured the Critical Race Theory beat, having warmed up with a Karen performance at Bozeman Yellowstone International Airport. Josh Hawley tried to sell the idea that the person in front of him was a pedophile sympathizer. And Cotton got the law-and-order angle, which he seemed to take as permission to slip into a hallucinatory event where Judge Jackson was actually being nominated to serve as attorney general.

At least Cotton, like Hawley, actually engaged with Jackson's record on the bench, even if both seized on parts of one or two cases to paint her as soft on crime. Cotton focused on a case where Jackson used the "compassionate release" elements of the First Step Act, a bipartisan criminal-justice reform measure passed in 2018, to reduce the sentence of a drug "kingpin." There was some merit to the notion Jackson had stretched the law, though Jackson—agreeing with the "kingpin" characterization—explained that the defendant had only gotten a 20-year sentence in the first place because prosecutors had pushed to use an offense from many years prior to the one at hand as an "enhancement," a practice she said the same First Step Act had done away with.

But at another point, Cotton seemed to think Jackson was vying to become AG, or even chief of police.

Does the United States need more police or fewer police? ... Is someone more likely or less likely to commit crime if they're more certain they're going to be caught, convicted, and sentenced? ... Do you know what percentage of murders are solved in America? The answer is about half—54 percent in 2020. Do you think we should catch and imprison more murderers or fewer murderers? ... So is that a yes, we should catch more murderers, specifically the 46 percent of murderers who get away with it? ... Let's turn to assaults. Do you know how many assaults were solved in this country in 2020? 44 percent. So 56 percent of all assault victims did not receive justice. ... Do you know what percentage of sexual assaults and rapes go unsolved in this country? 77 percent.

The Arkansas senator probably did not mean it that way, but he just embarked on an extended indictment of American law enforcement. In Chicago, only 45 percent of homicides were cleared in 2020. There's a cocktail of factors at work here, including community distrust for the police which hampers investigations and any attempts to find witnesses. But the fact is that American police departments are failing to solve a lot of violent crimes.

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Cotton probably thinks this is down to efforts to Defund the Police—which hasn't actually happened—and excessively lenient judges. (The point of the questioning, in theory, was to paint Jackson as the latter.) It's a product of the First Step Act, he might say, or efforts to cut down on the number of nonviolent offenders we throw the book at. But this is a downward trend since the 1980s, when the Marshall Project tells us police cleared around 70 percent of all homicides. The '90s saw Democrats in the Bill Clinton mold adopt law-and-order proclivities to match the Republican Party, and put in place a policy regime that by-and-large persists today. (The First Step Act was meant to be the beginning of a since-stalled bipartisan criminal justice reform effort.) There have been some movements towards bail reform and other local measures in recent years, but that does not account for the trend. At no point has Cotton ever grappled with the fact that the United States throws more people in jail than any other country, yet this has not yielded his desired results.

It's not just that these questions are outside the purview of a Supreme Court nominee. It's that they're supposed to be in Cotton's purview as a member of Congress, something Jackson sought to point out repeatedly. In our system, Congress is tasked with making this kind of policy along with state and local governments. It's just the legislature has become totally dysfunctional when dealing with any issue that has partisan salience, and increasingly, it has ceded its powers to the Executive and Judicial branches. It's a use-it-or-lose-it scenario, where Congress has handed over its war powers to the president and much of its regulatory remit to the courts. And of course, the reason Republicans have seized control of the highest court so ruthlessly is that it has the power to overrule decisions by the Executive, lending them power that transcends elections. And somehow, all this mess led to Cotton attacking the record of American law enforcement at a Supreme Court hearing.

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Jack Holmes
Senior Staff Writer

Jack Holmes is a senior staff writer at Esquire, where he covers politics and sports. He also hosts Unapocalypse, a show about solutions to the climate crisis.