Barring an unexpected plot twist, the Senate Judiciary Committee has concluded its hearings on the nomination of Ketanji Brown Jackson to the Supreme Court. Democratic senators appear primed to confirm her, but Republicans should vote “No.”
The hearings were testy at times, but they were a model of civility compared with the Brett Kavanaugh or Clarence Thomas hearings. Unlike Kavanaugh, Judge Jackson did not have senators reciting the preposterous claims of a since-imprisoned grifter that she was a gang rapist, and did not see the Capitol and the hearing room overrun by angry mobs. Unlike Amy Coney Barrett, she did not face a barrage of media attacks on her faith and her family. Unlike Samuel Alito, she was not slimed by tenuous association with racist or sexist groups, even though Jackson herself currently sits on the board of overseers of a college that is being sued for its open and notorious practice of anti-Asian race discrimination in admissions.
Indeed, Democratic paeans to the historic nature of her nomination to be the first African-American woman on the Court ring hollow due to their prior mistreatment of appellate nominees such as Miguel Estrada and Janice Rogers Brown, both of whom were targeted because Joe Biden, Dick Durbin, Chuck Schumer, and other Senate Democrats feared letting a Republican president appoint a “first.”
Complaints about Republican behavior towards Jackson were overblown and sometimes patronizing to a veteran trial judge who was more than capable of handling herself. The Washington Post editorial board insulted the intelligence of its readers by claiming that Jackson had been treated worse than Kavanaugh. The White House has claimed that it is a “QAnon-signaling smear” to question Jackson on her record, as a judge, of sentencing defendants convicted of child-pornography offenses.
While there are fair grounds for argument over Judge Jackson’s approach to that subset of her criminal sentences, a number of Republican senators made unconvincingly harsh attacks over them instead of exploring her approach to the law itself. Criminal sentencing is a big part of Judge Jackson’s resume and sheds some light on her values, which tend to err on the side of leniency more broadly rather than simply in cases involving child pornography. That said, even though there are arguments to be made regarding sentencing guidelines, it is a subject that rarely intersects with the Court’s job.
Judge Jackson is sufficiently experienced for the job. At her hearing, she demonstrated that she is sufficiently learned in the law. We recognize the historic nature of her nomination, which should not be obscured by Joe Biden’s imprudent decision to narrow his criteria by race and sex. Our concern with her nomination is more fundamental: We do not trust her to faithfully apply the Constitution and laws of the United States. That is the core of a Supreme Court justice’s job, and there are no do-overs for the Senate if it confirms a nominee who will not do so.
The problem begins with Jackson’s slender record as an appeals judge and the limits of her docket as a trial judge. She testified under oath less than a year ago that she lacked sufficient judicial experience with constitutional cases to form a view on the interpretation of the Constitution. She has not written any opinions since then to change that, or to enable an evaluation of how she approaches the task. It was encouraging to hear Jackson, in her testimony, repeatedly embrace the original public meaning as the lodestar of constitutional interpretation. It was heartening to see her distance herself from her former boss, Justice Stephen Breyer, on the use of foreign law as a guide to what our Constitution should mean. But we have nothing but her say-so by which to judge the sincerity of those pledges.
The avowed enemies of an originalist interpretation of the Constitution, including some who know her well, unanimously support Jackson’s nomination. Presumably they do so for a reason.
Jackson spoke eloquently of her love of America, her family members in law enforcement, the nation’s great racial progress, and how the United States has “the best criminal-justice system in the world.” But when asked simple questions about the human race, she balked at contradicting radical leftist ideology. When Senator Marsha Blackburn (R., Tenn.) asked, “Can you provide a definition for the word ‘woman’?” Jackson replied, “I can’t. I’m not a biologist.” When Senator John Kennedy (R., La.) asked Jackson when human life begins, she responded, “I don’t know.”
As a judge, Jackson was typically careful in uncontroversial cases, but prone to bend the law in a series of cases against the Trump administration. In one case on immigration policy, she somehow decided that she could judicially review a matter statutorily reserved to the “sole and unreviewable discretion” of the secretary of homeland security. The D.C. Circuit, in an opinion by an Obama appointee, was aghast: “There could hardly be a more definitive expression of congressional intent to leave the decision about the scope of expedited removal, within statutory bounds, to the Secretary’s independent judgment.” On the D.C. Circuit, she joined an emergency order upholding Biden’s lawless CDC eviction moratorium, which was subsequently struck down by the Court.
Perhaps there is some chance that Jackson is sincere about respecting the original meaning of the Constitution, or would at least be open to persuasion by colleagues on the Court. But that’s obviously not enough to entrust her with the fate of the U.S. Constitution. Republican senators should oppose her nomination without hesitation.