Characteristically, Dan hits the nail on the head in describing how Judge Ketanji Brown Jackson and Judiciary Committee Democrats (particularly Chairman Dick Durbin) tried to deflect the central question of what her judicial philosophy is — assuming that she has one, which I daresay most of us believe she does.
I also agree that it is a great triumph of the originalist interpretive school (championed by Justice Scalia, Judge Bork, Ed Meese, and other luminaries) that even progressive judges now nod to the precept that, because judges are supposed to apply existing law rather than legislate new law, the judge must factor in the law’s original understanding — although I note that, despite this nod, progressive judges tend to describe the original understanding as just one factor and reserve the discretion to consider others. I am not convinced that they’ve been converted. Judge Jackson is no exception.
It seems to me that Judge Jackson has spent a lot of time preparing for this judicial-philosophy line of questioning. Her go-to counter is to pivot to her “methodology” when the question of interpretive philosophy comes up.
She’s done this a few times already. Essentially, she describes judging as a “mechanical” exercise (as Adam Liptak put it in the New York Times). She said she has “not really a philosophy, more of a methodology,” in which she accounts for “three inputs,” which are ”the arguments of the parties, the facts in the case, and the law that applies in every case.” This, she maintains, screens out “my personal views.”
All well and good. Still, it should be obvious that a method of deciding issues is something saliently different from construing “the law that applies” in the case. What Republicans must press her on is how she determines that. After all, she says it is part of her method “in every case,” in order to ensure that she is applying objective law rather than interjecting her own preferences.
The methodology riff is nice, but it doesn’t answer the central question.