In today’s Wall Street Journal, both the editorial board and law professor Randy Barnett have fine pieces highlighting how remarkable it is that Judge Ketanji Brown Jackson saw fit to offer various bows and curtsies to the interpretive methodology of originalism. Of course, neither WSJ nor Barnett is gulled by Jackson’s testimony. As Barnett points out, it’s one thing to sound like an originalist—in an evident attempt to smooth one’s path to confirmation—and it’s quite another to actually be an originalist. I like this line from the house editorial: “If originalism is only one tool in Judge Jackson’s toolbox, she might also have a buzz saw in there.”
Have in mind that it was less than a year ago, at her confirmation hearing for her D.C. Circuit nomination, that Jackson testified:
I have not had any cases [during eight years as a district judge] that have required me to develop a view on constitutional interpretation of text in the way that the Supreme Court has to do and has to have thought about the tools of interpretation. I am aware that the Supreme Court, at least with respect to certain provisions of the Constitution that it already interpreted, has looked at history and is focused on the original meaning of the text, say, in the Second Amendment . . . context in the Heller case. I just have not had any opportunity to do that.
As a D.C. Circuit judge, Jackson has issued a grand total of two opinions, neither of which involved constitutional interpretation. So there is no indication that anything since her D.C. Circuit confirmation hearing would have led her to “develop a view on constitutional interpretation.”
There are of course various claimants to the mantle of originalism, some more plausible than others. For present purposes, I will simply note that just as no liberal supporter of Jackson believes that she is an acolyte of Justice Scalia, no Republican senator should be expected to believe that either.