A Supreme Court confirmation hearing can be very exhausting for the nominee, so perhaps some lapses should be expected. That said, Judge Ketanji Brown Jackson’s response to a question that Senator Amy Klobuchar asked about her ruling in Guam v. United States struck me as extraordinary:
It was a CERCLA case, which is a Superfund cleanup kind of case, where the country of Guam, which had — which has a — a dump site on it that was used by both the citizens of Guam and the United States before the 1950s when the United States was stationed there, military operations happened out of Guam, and there was a lot of dumping into this site.
And over time, the site got contaminated, and Guam was charged with having to clean it up, which is millions and millions of dollars. And there are statutes — very complicated statutes about the circumstances under which you can seek contribution, under which a country like that can ask for the United States to pay some of that cost or other countries to pay some of that cost.
I can of course understand that lots of folks might not know that Guam, far from being a “country” of its own, is a territory of the United States. But Jackson wrote at least two opinions in the case, and in at least one of them she (or one of her law clerks) accurately explained Guam’s status. So how does she now think that Guam is a separate country?
What’s more, does Jackson really believe that the CERCLA statute enables the EPA to charge “other countries” for clean-up costs and then enables those countries to ask the United States to pay for those clean-up costs? And to sue the United States in federal district court to recover such costs?
(Klobuchar contended that by reversing the D.C. Circuit, which had reversed Jackson, the Supreme Court in Guam v. United States “aligned with” KBJ. The Court in fact ruled on a different ground than Jackson did, so any alignment was coincidental.)