WASHINGTON. Judge Ketanji Brown Jackson alternated between two responses on the first day when she asked questions at the Supreme Court confirmation hearing on Tuesday. In legal matters, she was opaque and evasive, emphasizing the limited role of the judiciary.
But in more specific matters, she was direct and even passionate. She spoke forcefully about the horrific and long-lasting trauma of child sexual abuse, the severe aftermath of the September 11, 2001 terrorist attacks, and the critical role of criminal defense lawyers in upholding constitutional values.
This two-phase move helped neutralize some of the lines of attack developed by Republicans since President Biden announced the nomination of Justice Jackson last month: that she would allow politics to play a role in her work on the Supreme Court, and that aspects of her professional experience indicated that she was outside the legal mainstream.
In the legal field, she insisted that she had no forensic philosophy, but only what she described as a methodology bordering on robotics that considers the parties’ statements and then applies the relevant law to the facts in the record.
Before applying this methodology, she said, “I clear my mind of any preconceived ideas about how things might end up and discard any personal views.”
This statement was reminiscent of what Judge Clarence Thomas said at his 1991 confirmation hearing. He claimed that he would have no agenda in the dock and would approach cases “naked like a jogger”.
Justice Thomas has become the most conservative member of the current Supreme Court. And there is little doubt that Judge Jackson, if she is confirmed, will generally vote along with the liberal members of the court.
This will preserve a lopsided conservative majority on the court, with six Republican nominees outnumbering three Democrats.
If judging were really just a process of clearing the deck and applying the law to the facts, confirmation hearings would not be the partisan battlefield they have become. But Judge Jackson didn’t even hint that politics, politics, ideology, personal preferences, or even judicial philosophy play a role in the case.
When she described her real job as a trial judge, another side of her showed up. She stressed, for example, that “it’s important to me to make sure the children’s point of view, the children’s voices are represented in my sentences” of people convicted of possessing images of child sexual abuse.
“The market for this kind of material exists only because there are spectators,” she recalled, speaking to the defendants, one of whom was crying. “You promote child sexual abuse.”
Judge Jackson described victims who ended up abusing drugs or becoming prostitutes. One, she says, “can’t leave the house because she thinks that everyone she meets has seen her pictures on the Internet – they’re there forever – at the most vulnerable moment of her life.”
It was one of several highlights where Judge Jackson violated the normal rules of confirmation hearings, which tend to be fruitless and insipid.
Recalling the “tragic attack” on 9/11, she said, “We couldn’t let the terrorists win by fundamentally changing who we were.”
“And that meant,” she said, “that the people our government accused of doing things related to this under our constitutional scheme were entitled to representation.”
She strongly denied the accusation that her work as a federal public defender showed her soft spot for crime, noting that her brother and two uncles worked in law enforcement.
“As someone whose family members were on patrol and in the line of fire,” she said, “I care deeply about public safety.”
To the extent that she debated the interpretation of the constitution, she appears to have embraced originality, which relies on the original public meaning of the Constitution at the time of its adoption.
“I don’t believe there is a living Constitution,” she said, “in the sense that it changes and is infused with my own political point of view or the political point of view of the day.”
“The Supreme Court has made it clear that when you interpret the Constitution, you are looking at the text at the time of founding and what the meaning was then, as a limitation of my own power,” she said. “And so I apply this restriction. I look at the text to determine what it meant to those who wrote it.”
In answering questions about Roe v. Wade, the 1973 decision that established the constitutional right to abortion, Judge Jackson reiterated the statements of three former President Donald J. Trump-appointed Justices Neil M. Gorsuch, Brett M. Kavanaugh, and Amy Coney Barrett. Like them, she said that Roe was a set precedent, meaning that it should only be abolished if the strict requirements of the “stare decisis” doctrine were met.
Under this doctrine, which is Latin for “to support settled cases,” courts consider factors such as whether the precedent was flagrantly wrong, whether it proved unworkable, whether it was undermined by later decisions, and to what extent people came to rely on him. This.
When Roe’s challenge was challenged in December, Judges Gorsuch, Kavanaugh and Barrett appeared ready to limit or overturn it.
Like other recent candidates, Judge Jackson declined to answer many questions.
She did not say whether she supported or opposed an increase in the Supreme Court, even after being reminded that Justice Steven J. Breuer, whom she hopes to replace, and Justice Ruth Bader Ginsburg, who died in 2020, spoke out against the idea. . . “I especially try not to talk about politics,” she said, “because I’m so committed to staying in my lane of the system.”
She will also not take a stand on the camera covering the court’s arguments, which candidates have previously said they were leaning towards.
Judge Breyer, for whom Judge Jackson worked as a clerk, wrote and spoke approvingly of the role that foreign and international law can play in the work of American courts. Judge Jackson declined to support this position.
“I think there are very, very few cases where international law plays any role, and certainly not in the interpretation of the Constitution,” she said.
Asked about Judges Thomas and Gorsuch’s calls to reconsider the 1964 New York Times v. Sullivan ruling that the First Amendment limits the ability of public officials to bring libel suits, Judge Jackson listed various criteria for setting aside precedents. She did not say how she would use them.