In the aftermath of Judge Ketanji Brown Jackson’s confirmation to a seat on the United States Supreme Court, there’s a lot still to be said about the way federal judicial nominations are handled. Most of it bad. Like Humpty Dumpty, the process is so badly broken that “all the king’s horses and all the king’s men” may never get it back together again.
Each party blames the other for the breakdown. Republicans, heels dug in, say, “What about Bork?” Equally immovable Democrats respond, “What about Merrick Garland?” Rare these days is the senator who can vote to confirm a high court appointment made by a president of the other party without incurring substantial political problems with the folks back home.
The reasons for this are not just partisan. As the parties have polarized, so too has their view of the proper role of the federal judiciary. Progressives prefer nominees who are “activists” and who consider the public policy implications of what they hand down in addition to or over and above issues of constitutionality. They, like the late Justice William O. Douglas, believe they should be guided by the penumbras currently emanating from the Constitution rather than its text alone, allowing, even requiring them to “make law from the bench” without regard for textual limitations.
Conservatives seek out nominees who feel bound by limitations beyond precedent, including the belief that the words used in the Constitution had a clear, specific, common meaning understood by reasonable people at the time it was written and which are still determinate today. That philosophy of “originalism,” held among others by legendary Justice Antonin Scalia, is best expressed axiomatically as “The Constitution says what it means and means what it says.”
Over time, these diametrically opposite views regarding the role of a Supreme Court justice have turned the confirmation process into something resembling a partisan political campaign. President Joe Biden acknowledged as much Friday at the White House at an event with Judge Jackson following the Senate vote.
“I knew the person I nominated,” he said, “would be put through a painful and difficult confirmation process. But I have to tell you: What Judge Jackson was put through was well beyond that. There was verbal abuse, the anger, the constant interruptions, the most vile, baseless, vile [sic] assertions and accusations.”
Biden must have missed the Kavanaugh hearings. He didn’t miss the Bork or Thomas hearings, though. He was not only present as they were publicly flayed regarding their opinions and had their character assassinated, he presided over them. And each one of them contained more “baseless, vile assertions and accusations” than anything Judge Jackson experienced.
It’s no coincidence the coarseness now infecting the judicial confirmation process started when Biden was chair of the Senate Judiciary Committee. He knows the role politics plays in the process of getting someone on the federal bench, embracing it when running for president in 1988 and 2020 when he refused to commit for or against a proposal to “pack” the Supreme Court should he win.
This leaves Judge Jackson in an unfortunate position. For the rest of her life, or at least for as long as she is on the Court, there will be just as many people wondering if she was the best choice for the job or if her appointment was simply the most politically expedient for a president who needed to keep a campaign promise.
As far as the Senate vote goes, congratulations are due to the future justice now that she has been confirmed. It is a high honor of which she will hopefully prove herself worthy. There’s reason for concern she won’t, but not the ones you might expect.
Biden won the election. He had every right to pick a liberal, activist judge. If qualified, she should be confirmed despite that. By deciding to focus on what frankly were ancillary matters during her confirmation hearings, the senators on the Judiciary Committee rejected the opportunity to explore just how far outside the mainstream of American legal thought she might be and if any of her views were extreme enough to disqualify her.
Such a reason might exist but was left largely unexplored. In a set of written questions submitted to her by members of the committee, Judge Jackson was asked to explain, in her own words, “the theory prevalent among members of the Founding Fathers’ generation that humans possess natural rights that are inherent or inalienable.”
She answered well at first, explaining this as the being reflected in the Declaration of Independence – some might call it the cornerstone of the entire document – that certain rights come from “our Creator,” as Jefferson put it, and are, therefore, “inalienable.” These include, she wrote the right to “life, liberty, and the pursuit of happiness” and are often referred to as “natural rights.”
This is more than just the mainstream view of the common law, embraced by liberals and conservatives alike for centuries. It is foundational to the American democratic system. When asked if she herself held that view, she replied, “I do not hold a position on whether individuals possess natural rights.”
This is a jarring admission. At least it should be. If our most basic rights like the right to life and liberty do not come from “our Creator,” if they are not inherent, then they can only be made by man. If they are made by man or granted by man, they can be taken away.
Admittedly, there is a difference between having a right and being able to exercise it, which is something Supreme Court justices often must consider in the cases before them: Has an action by the government interfered with an individual’s ability to exercise an inherent right? Judge Jackson’s position was not made clear in a follow-up question seeking to clarify her views.
Instead, she responded evasively, directing those reading her response to her answer to a previous question: “As a sitting federal judge, all of the Supreme Court’s pronouncements are binding on me, and under the Code of Conduct for United States Judges, I have a duty to refrain from critiquing the law that governs my decisions, because doing so creates the impression that the judge would have difficulty applying binding law to their own rulings. Consistent with the positions taken by other pending judicial nominees, it is my testimony that, as a general matter, it would be inappropriate for me to comment on the merits or demerits of the Supreme Court’s binding precedents.”
That tells us nothing. It is a subject that those who sought to keep Judge Jackson off the high court should have pursued with greater force. Does she believe we have an inherent right to life and to liberty, or doesn’t she? This is one of the most basic of the many complex issues the justices on the high court are called upon to consider every term. The American constitutional republic is predicated on the notion that the government’s respect for all opinions and people, even those in the minority in any group or on any issue, is a requirement. It can be inferred from her answer that she does not agree and may fall back on that position but only when it is useful to do so in furtherance of her arguments in her writings.
Hopefully, this will not prove to be a real concern. Either she affirms through her writings from the bench that her views are, in fact, in line with the thinking of the Founders or because she will be forever in the minority on the Court on any decision handed down by the Court where belief in inherent rights matters. Elections, as they say, have consequences. Her elevation to the Court is one of them. Something to remember for next time.