After four long days of hearings by the Senate Judiciary Committee, we are left with more questions than answers about what kind of justice Ketanji Brown Jackson would be if confirmed to the Supreme Court — and the answers the Senate received were troubling to the point of being disqualifying.
Judge Jackson repeatedly claimed to not have a judicial philosophy. Instead, she suggested that she uses a “methodology” that she has developed throughout her time on the bench: utilizing “the arguments of the parties, the facts in the case, and the law that applies in every case” as “inputs” that aid her decision-making.
The problem is that this “methodology” wholly lacks substance, and Jackson described more of a functional strategy used by every judge, rather than a philosophical lens through which she views the law. A judicial philosophy is needed to inform how the law is read and how it applies to the facts of any case.
When Jackson was giving curious answers about her non-philosophy, she paid lip service to textualism and originalism, discussing how she may rely on the original public meaning of laws used in deciding cases. Maybe, as Justice Elena Kagan said during her confirmation hearings, “we’re all textualists” now.
However, Professor Jennifer Mascott’s testimony before the committee explains how Judge Jackson’s “methodology,” as evidenced in her judicial opinions, would allow her to stray from the text of the law: “The approach embedded within certain lower-court decisions further suggests that the judge’s application of constitutional and statutory methodology would differ significantly from the approach of previously committed textualist and originalist jurists.”
Professor Mascott noted that textualism and originalism would likely be just one of many frameworks used by a Justice Jackson “alongside heavy reliance on (even incorrect) precedent, legislative history, and general purpose.” Huh? Judicial philosophy is not a fast-food menu of choices — rather, Supreme Court justices typically bring an intellectual or philosophical framework to the task that provides coherence and consistency to judicial analysis. This word-salad explanation on Judge Jackson’s behalf, simply begs the central question.
Democrats clearly knew that Judge Jackson’s lack of judicial philosophy (or unwillingness to be forthcoming about her philosophy) would be a problem. So they decided to try to make it a non-issue, with several declaring that judicial philosophy either does not matter, or is not useful for deciding whether to confirm someone to sit on the highest court in the land. This is sophistry from Democrats who cared a great deal about the question when they wanted to attack Republican nominees.
Beyond her unwillingness to articulate a judicial philosophy, Jackson illustrated her willingness to bow to the radical ideology of the left in an exchange with Sen. Marsha Blackburn where Jackson declined to define what a woman was, demurring that she was “not a biologist.”
An ironic dodge
Remarkably, the nominee specifically chosen by the Biden administration and heralded by the media based on her biological sex is unwilling to comment on what the definition of a woman is — a dodge she surely would not suffer in her own courtroom from a recalcitrant witnesses trying to prove he or she was too clever for the examining lawyer.
Jackson’s extraordinary non-answer to this existential question raises serious doubts about how she would adjudicate claims arising under important federal statutes, including Title VII and Title IX, that come before the court relating to foundational legal concepts such as sex, gender and equal protection.
Would Justice Ruth Bader Ginsburg, whose historic career was founded on the struggle for women’s rights under the law, recognize a radically changed landscape where a putative Supreme Court Justice undermines the very concept of womanhood itself?
The wisdom of her sentencing practices was debated, but one thing was clear from Judge Jackson’s testimony: She believed the sentencing guidelines formulated to accompany the laws passed by Congress were outdated, or too harsh, which justified her substituting her own radically different judgment for them when a trial court judge. What other laws does she believe are outdated enough that she can ignore them once on the Supreme Court?
Jackson claimed not to be familiar with critical race theory, but she has spoken favorably of it in past speeches and sits on the board of a “progressive” elite school in Washington, DC, where the tenets of critical race theory are taught to elementary students. What other progressive ideologies does she refuse to recognize publicly while quietly supporting them?
The incredible “what is a woman” answer, coupled with a pastiche of responses on judicial philosophy seemingly designed to placate or parry rather than elucidate, misdirection on critical race theory from a judge who has spoken about its founders and pop culture proponents in such glowing terms in the past two years, and refusal to answer so many questions, adds to a pile of clues that the real Jackson, and what motivates her, remains hidden from the Senate.
As a judge might say, the Senate had been presented with an incomplete record, but one from which certain inferences may fairly be drawn — and those inferences counsel against confirmation of Judge Ketanji Brown Jackson.
Harmeet Dhillon is chairwoman of the Republican National Lawyers Association.