Below is my column in USA Today on the confirmation hearings for Judge Ketanji Brown Jackson. For the most part, the hearings remained respectful and civil. I criticized some of the questioning from Republican senators on relevance or tone, but the difference with the prior three nominations was striking in a number of respects. Judge Jackson faced tough questioning on her prior decisions, but there were no giant pictures of alleged future victims or attacks on her religion or family that we saw two years ago. Indeed, as Sen. Cory Booker (D., N.J.), stated “This is not a normal day for America. We have never had this moment before.”
Here is the column:
The famous “gonzo journalist” Hunter S. Thompson once said, “Politics is the art of controlling your environment.” The confirmation hearing of Judge Ketanji Brown Jackson is about to vividly show what Thompson meant. Less than two years after the abusive treatment of Justice Amy Coney Barrett, the Senate is holding a hearing that is dramatically different in the treatment of the Supreme Court nominee and the issues considered relevant to her confirmation.
For those with memories going back to 2020, there have been striking differences in how the news media haved covered Jackson’s nomination in recent weeks. When Barrett was nominated, the media ran unrelenting attacks on her and her background. Nothing was viewed as out of bounds, from her religion to her personal life to fabricated theories of prior assurances on pending cases.
From the start of the Jackson hearing, this is clearly different in both optics and approaches. Barrett was surrounded by pictures of people relying on the Affordable Care Act, a framing to portray Barrett as threatening the very lives of sick people. It was all part of an absurd claim (fostered by liberal legal experts) that Barrett was appointed to kill the ACA.
I objected at the time that senators were radically misconstruing the pending case and that Barrett was more likely to vote to preserve the ACA. (Barrett ultimately voted to preserve the act, as expected.)
There will be no gallery of endangered people surrounding Jackson. Most senators will give her the confirmation hearing that was denied to Barrett: respectful and civil. That is a good thing.
Yet, the Jackson nomination should not be treated as inviolate.
Questions about judicial philosophy
Almost immediately after Jackson’s nomination, liberal members and commentators made clear that past questions or criticisms would not be tolerated or would even be declared racist. For example, while past Republican nominees were called “political deliverables” on presidential campaign promises, the phrase was declared categorically “offensive” by Sen. Amy Klobuchar, D-Min., in this nomination.
That is a triviality in comparison to more substantive and outstanding questions. While every prior nominee has been subject to questions about judicial philosophy, it was declared a racist dog whistle to even note that Jackson’s philosophy is not clear (particularly given her past refusal to discuss her philosophy).
While past nominees have been found to have similarly limited records on constitutional interpretation, a senior editor at Above the Law declared asking such questions as akin to declaring her a “lesser Black woman.”
Indeed, the expectations for the hearing were made clear by Rep. Jim Clyburn, D-S.C., who insisted that Jackson’s confirmation is “beyond politics,” and that the vote is not about her alone but “about the country, our pursuit of a more perfect union.”
For those of us who have covered virtually every living member of the Supreme Court in their confirmations, the expected limitations are glaring and troubling.
As I said immediately after her nomination, I like many aspects of Jackson’s background, particularly her work as a public defender and a trial judge. I also stated that President Joe Biden did Jackson and others a great disservice in declaring that he would not consider anyone but Black female candidates. Jackson would have been on the shortlist without such a threshold exclusionary criteria.
Jackson herself rejected the notion (pushed by Biden and supporters) that she would rule differently as an African American female. In her prior confirmation, Jackson said, “I don’t think that race plays a role in the kind of judge that I have been and that I would be.”
I commended Jackson for that position, and I expect she will handle herself brilliantly this week. However, the Senate hearing will be manifestly different from the prior nomination.
Barrett was the subject of disgraceful attacks on the basis of her religious beliefs. Senators called on her to explain her association with People of Praise, a small Christian group in Indiana. The group once referred to female leaders as “handmaids,” and liberal commentators had a field day with vicious and vulgar assaults.
Yet, there is virtually no mention of Jackson’s position on an advisory board for the now-defunct Montrose Christian School in Rockville, Maryland.
As one conservative commentator has documented, the school provided “Christ-centered education for the glory of the Savior and the good of society.” Among the school’s “uncompromisingly” held principles were that gender is a gift that’s “part of the goodness of God’s creation”; that Christians must oppose “all forms of sexual immorality, including adultery, homosexuality, and pornography”; that marriage is the “uniting of one man and one woman in covenant commitment for a lifetime”; and that Christians should “speak on behalf of the unborn and contend for the sanctity of all human life from conception to natural death.”
Even the fact that the Barrett family is interracial (like the Jackson family) was not off-limits. Ibram X. Kendi, the director of the Center for Antiracist Research at Boston University, declared that her adoption of two Haitian children raised the image of a “white colonizer” and suggested the children were little more than props to their mother.
What needs to be answered
There are other issues that need to be addressed, including what could be the ultimate issue for confirmation. In the Barrett confirmation, some Democratic members not only demanded Barrett tell them how she was likely to vote on pending cases, they also declared they’d vote against her purely for holding a conservative judicial philosophy.
Sen. Dick Durbin, D-Ill., opposed Barrett because her interpretive approach would work “against change and evolution in America that is inevitable and in fact necessary.”
According to that standard, every Republican senator could presumably vote against Jackson if they viewed her as supporting liberal interpretative models like the “living Constitution.” After all, Biden pledged that he would only nominate someone who holds a liberal view of the Constitution on “unenumerated rights.”
What is striking about the pushback on asking about Jackson’s interpretative approach is that some of us do not want to simply assume that she will just apply a liberal approach. Her trial court decisions shed little light on that question, and she previously refused to discuss her philosophy. Yet, those who insist that she has a clear philosophy are more clear in their objections than their analysis – or what that constitutional interpretative approach is.
Jackson is not the first nominee with such questions over judicial philosophy. However, no nominee is inviolate. This is not about the republic. It is about this nominee and her approach to questions of judicial interpretation and judicial ethics.