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The famous “gonzo journalist” Hunter S. Thompson once said: “Politics is the art of controlling one’s environment”. Judge Ketanji Brown Jackson’s confirmation hearing is about to make it clear what Thompson meant. Less than two years after the abusive treatment of Justice Amy Coney Barrett, the Senate is holding a radically different hearing in the treatment of the Supreme Court nominee and the issues deemed relevant to her confirmation.
For those with memories dating back to 2020, there have been stark differences in how the media has covered Jackson’s nomination in recent weeks. When Barrett was nominated, the media launched relentless attacks on her and her background. Nothing was considered off-limits, from his religion to his personal life to fabricated theories of prior assurances about current affairs.
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From the start of the Jackson hearing, it’s clearly different in both focus and approaches. Barrett was surrounded by photos of people leaning 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 (favored by liberal legal experts) that Barrett was appointed to kill the ACA.
I objected at the time that senators were radically misinterpreting the case at hand 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 people in danger around Jackson. Most senators will grant him the confirmation hearing that Barrett was denied: respectful and civil. This is a good thing.
Still, Jackson’s nomination should not be treated as inviolable.
Judicial Philosophy Questions
Almost immediately after Jackson’s nomination, liberal members and commentators made it clear that past questions or criticism would not be tolerated or even declared racist. For example, while former Republican candidates were branded as “political deliverables” on presidential campaign promises, the phrase was declared downright “offensive” by Sen. Amy Klobuchar, D-Min., in that nomination.
It is a triviality compared to more substantial and outstanding questions. While each previous nominee has been subjected to questions about forensic philosophy, it’s been declared a racist dog whistle to even note that Jackson’s philosophy is unclear (especially given his past refusal to discuss his philosophy).
While past candidates have been found to have similarly limited records on constitutional interpretation, an Above the Law editor said asking questions like declaring her an “inferior black woman.”
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Indeed, the expectations for the hearing were made clear by Rep. Jim Clyburn, DS.C., who insisted that Jackson’s confirmation was “beyond politics” and that the vote would not. concerned not only but “over 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 boundaries are stark and troubling.
As I said immediately after his appointment, I love many aspects of Jackson’s journey, especially his work as a public defender and trial judge. I also said that President Joe Biden did a huge disservice to Jackson and others by saying he wouldn’t consider anyone but black candidates. Jackson would have been on the shortlist had it not been for such an exclusion criteria threshold.
Jackson herself has dismissed the idea (pushed by Biden and his supporters) that she would rule differently as an African-American woman. In his pre-confirmation, Jackson said, “I don’t think race plays a role in what type of judge I have been and will be.”
I congratulated Jackson for the position, and I expect her to do brilliantly this week. However, the Senate hearing will obviously be different from the previous nomination.
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Barrett has come under shameful attack based on her religious beliefs. The senators called her to explain her association with People of Praise, a small Christian group in Indiana. The group once called the female leaders “handmaidens” and liberal commentators have amused themselves with vicious and vulgar attacks.
Yet there is virtually no mention of Jackson’s position on an advisory board at the now defunct Montrose Christian School in Rockville, Maryland.
As one conservative commentator has documented, the school provided “a Christ-centered education for the glory of the Savior and the good of society.” Among the school’s “uncompromising” tenets were that sex is a gift that “is 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 union of a man and a woman in a covenant commitment for life”; and that Christians should “speak on behalf of the unborn child and strive for the sanctity of all human life, from conception to natural death”.
Even the fact that the Barrett family was interracial (like the Jackson family) was not forbidden. Ibram X. Kendi, director of Boston University’s Center for Antiracist Research, said his adoption of two Haitian children raised the image of a “white colonizer” and suggested the children were little more than accessories for their mother.
What to answer
I don’t agree with some objections to Jackson, like his alleged support for critical race theoryhis defense of clients or his work as a court clerk.
There are other issues that need to be resolved, including what might be the ultimate issue for confirmation. In Barrett’s confirmation, some Democratic members not only asked Barrett to tell them how she was likely to vote on current cases, but they also said they would vote against her only for adopting a conservative judicial philosophy.
Sen. Dick Durbin, D-Ill., opposed Barrett because his interpretive approach would work “against the change and evolution in America that is inevitable and indeed necessary.”
By that standard, every Republican senator could plausibly vote against Jackson if they viewed her as supporting models of liberal interpretation like the “Living Constitution.” After all, Biden promised he would only appoint someone who has a liberal view of the Constitution on “unlisted rights.”
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What is striking about the refusal to ask about Jackson’s interpretive approach is that some of us don’t want to simply assume that she will simply apply a liberal approach. Her trial court decisions shed little light on this issue and she had previously declined to discuss her philosophy. Yet those who insist she has a clear philosophy are clearer in their objections than their analysis – or what that constitutional interpretative approach is.
Jackson is not the first candidate with such questions about forensic philosophy. However, no candidate is inviolable. It’s not about the republic. It is about this candidate and her approach to questions of judicial interpretation and judicial ethics.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of the USA TODAY Board of Contributors. Follow him on Twitter: @JonathanTurley
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