After 4 lengthy days of hearings by the Senate Judiciary Committee, we're left with extra questions than solutions about what sort of justice Ketanji Brown Jackson could be if confirmed to the Supreme Court docket — and the solutions the Senate obtained have been troubling to the purpose of being disqualifying.
Choose Jackson repeatedly claimed to not have a judicial philosophy. As an alternative, she steered that she makes use of a “methodology” that she has developed all through her time on the bench: using “the arguments of the events, the info within the case, and the regulation that applies in each case” as “inputs” that assist her decision-making.
The issue is that this “methodology” wholly lacks substance, and Jackson described extra of a useful technique utilized by each choose, reasonably than a philosophical lens by means of which she views the regulation. A judicial philosophy is required to tell how the regulation is learn and the way it applies to the info of any case.
When Jackson was giving curious solutions about her non-philosophy, she paid lip service to textualism and originalism, discussing how she could depend on the unique public that means of legal guidelines utilized in deciding instances. Perhaps, as Justice Elena Kagan mentioned throughout her affirmation hearings, “we’re all textualists” now.
Suspect ‘methodology’
Nevertheless, Professor Jennifer Mascott’s testimony earlier than the committee explains how Jackson’s “methodology,” as evidenced in her judicial opinions, would permit her to stray from the textual content of the regulation: “The strategy embedded inside sure lower-court choices additional means that the choose’s utility of constitutional and statutory methodology would differ considerably from the strategy of beforehand dedicated textualist and originalist jurists.”
Mascott famous that textualism and originalism would seemingly be simply one among many frameworks used by a Justice Jackson “alongside heavy reliance on (even incorrect) precedent, legislative historical past, and normal goal.” Huh? Judicial philosophy just isn't a fast-food menu of decisions — reasonably, Supreme Court docket justices usually deliver an mental or philosophical framework to the duty that gives coherence and consistency to judicial evaluation. This word-salad rationalization on Jackson’s behalf merely begs the central query.
Democrats clearly knew that Jackson’s lack of judicial philosophy (or unwillingness to be forthcoming about her philosophy) could be an issue. In order that they determined to attempt to make it a non-issue, with a number of declaring that judicial philosophy both doesn't matter, or just isn't helpful for deciding whether or not to substantiate somebody to sit down on the very best courtroom within the land. That is sophistry from Democrats who cared an excellent deal concerning the query after they wished to assault Republican nominees.
Past her unwillingness to articulate a judicial philosophy, Jackson illustrated her willingness to bow to the unconventional ideology of the left in an alternate with Sen. Marsha Blackburn the place Jackson declined to outline what a girl was, demurring that she was “not a biologist.”
An ironic dodge
Remarkably, the nominee particularly chosen by the Biden administration and heralded by the media primarily based on her organic intercourse is unwilling to touch upon what the definition of a girl is — a dodge she absolutely wouldn't endure in her personal courtroom from a recalcitrant witness attempting to show she or he was too intelligent for the analyzing lawyer.
Jackson’s extraordinary non-answer to this existential query raises severe doubts about how she would adjudicate claims arising beneath necessary federal statutes, together with Title VII and Title IX, that come earlier than the courtroom regarding foundational authorized ideas similar to intercourse, gender and equal safety.
Would Justice Ruth Bader Ginsburg, whose historic profession was based on the battle for ladies’s rights beneath the regulation, acknowledge a radically modified panorama the place a putative Supreme Court docket justice undermines the very idea of womanhood itself?
The knowledge of her sentencing practices was debated, however one factor was clear from Jackson’s testimony: She believed the sentencing pointers formulated to accompany the legal guidelines handed by Congress have been outdated, or too harsh, which justified her substituting her personal radically totally different judgment for them when a trial courtroom choose. What different legal guidelines does she consider are outdated sufficient that she will ignore them as soon as on the Supreme Court docket?
Jackson claimed to not be aware of vital race concept, however she has spoken favorably of it in previous speeches and sits on the board of a “progressive” elite college in Washington, DC, the place the tenets of vital race concept are taught to elementary college students. What different progressive ideologies does she refuse to acknowledge publicly whereas quietly supporting them?
The unbelievable “what's a girl” reply, coupled with a pastiche of responses on judicial philosophy seemingly designed to placate or parry reasonably than elucidate, misdirection on vital race concept from a choose who has spoken about its founders and popular culture proponents in such glowing phrases previously two years, and refusal to reply so many questions provides to a pile of clues that the actual Jackson, and what motivates her, stays hidden from the Senate.
As a choose may say, the Senate had been introduced with an incomplete document, however one from which sure inferences could pretty be drawn — and people inferences counsel in opposition to affirmation of Choose Ketanji Brown Jackson.
Harmeet Dhillon is chairwoman of the Republican Nationwide Legal professionals Affiliation.
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