Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Sunday, March 27, 2022

A Few Thoughts on Ketanji Brown Jackson

The United States Senate should confirm Ketanji Brown Jackson to the United States Supreme Court. Judge Jackson unquestionably possesses the requisite qualifications, experience, and character.

Robert Bork should have been confirmed too.

And Brett Kavanaugh was rightly confirmed.

The same is true for, among others, Sonya Sotomayor, Elena Kagan, Amy Coney Barrett, Neil Gorsuch, Samuel Alito, and John Roberts.

Why?

Because disagreement with a nominee’s interpretive philosophy (e.g., originalism or living constitutionalism) or disagreement concerning how a nominee might rule on specific legal issues (e.g., abortion) should never be a legitimate basis upon which to reject a nominee. Rather, the focus should be on a nominee’s qualifications, experience, and character, with particular emphasis on a nominee’s judicial temperament.

Sadly, however, the confirmation process has devolved into a political and ideologically-driven soap opera that bears little resemblance to reason, objectivity, or fairness, and that has politicized the Supreme Court and undermined its (and Congress’s) institutional legitimacy. And some legal scholars – and politicians – have contributed to the problem by often basing their support or opposition on whether a nominee’s perceived political views comport with their policy predilections.

How sad, and shameful.

***

Ketanji Brown Jackson’s hearings underscored how politicized, divisive, and, quite frankly, ridiculous the confirmation process has become. To be clear, Judge Jackson is eminently qualified to serve on the Court – and a person of great character and integrity. She graduated from Harvard University and Harvard Law School. She clerked for Justice Stephen Breyer. She is a respected judge on the United States Court of Appeals for the District of Columbia and the American Bar Association determined, as it did with Justices Kavanaugh and Barrett, that she was “well qualified” to serve on the Court.

But these facts didn’t stop the confirmation hearing from devolving into a political circus.

For example, Senator Marsha Blackburn asked Judge Jackson to define ‘woman.’[1] Senator Ted Cruz questioned Judge Jackson regarding her views on critical race theory, and whether she agreed with the views espoused in Ibram X. Kendi’s book, “Antiracist Baby.”[2] Whatever one’s views on critical race theory, questioning Judge Jackson on this issue was inappropriate – and entirely irrelevant. Also, Senators Tom Cotton and Lindsey Graham attempted to characterize Judge Jackson as too lenient on sex offenders (a claim that was quite misleading and inaccurate).[3] And Senator Cory Booker, who, while objecting to Brett Kavanaugh’s confirmation, declared that “this is the closest I’ll get to an ‘I am Spartacus’ moment,” delivered an impassioned speech that seemed a bit too contrived and inauthentic – a criticism that has plagued Booker for years.[4]  

Despite this nonsense, Judge Jackson performed admirably at the confirmation hearing and her testimony raised no issues concerning her qualifications, experience, or character, particularly her judicial temperament. As such, the Senate should confirm Judge Jackson.

Unfortunately, however, the hearings were only one component of this political soap opera.

***

What’s equally disheartening is the predictable behavior of some scholars who often support or oppose a nominee based solely on ideology.[5] Their support or opposition is not based upon the nominee’s qualifications, experience, or character, but on whether they believe that a particular nominee will reach outcomes that they support. As Ilya Shapiro explained when discussing Robert Bork’s failed nomination:

When Justice Lewis Powell unexpectedly announced his retirement in June 1987, it set the stage for what people already recognized was a pivotal moment in the fight for the Supreme Court. The Robert Bork nomination represents the moment when the scales fell from conservative eyes over what they perceived were unfair tactics in defeating a nominee who would finally, finally, start reversing the activism of the Warren and Burger Courts. And not because the nominee was perceived as unqualified, unethical, too much of a crony or assorted parochial concerns that had sunk nominees in the past. This was purely about ideology.[6]

Such an approach is intellectually dishonest and contributes to politicizing the rule of law and the Court, and to undermining these scholars’ credibility. Indeed, some law professors at Notre Dame (and approximately 5,000 lawyers) signed a letter opposing Amy Coney Barrett’s confirmation to the Court, citing reasons so flimsy and ideologically-driven (i.e., they didn’t like the outcomes that they speculated Barrett would reach on certain issues) that it begged the question of whether they truly embraced ideological diversity and eschewed the politicization of the confirmation process.[7] Unfortunately, when law students witness their professors supporting or opposing nominees based on ideology, it sends the message that ideology trumps intellectual honesty (and the rule of law), and that implicit (or explicit) biases trump impartiality. Put simply, disagreeing with a nominee’s political views or the outcomes that a nominee may reach in particular cases is no reason to oppose that nominee’s confirmation.

As they say, elections have consequences.

To be clear, it’s certainly appropriate to reject a nominee based on their judicial temperament, but not based on their judicial philosophy. I vehemently disagree, for example, with living constitutionalism, which I believe is a fundamentally dishonest and outcome-driven approach to constitutional interpretation. But that disagreement would never cause me to oppose a nominee. The real question should be whether a nominee’s rulings – particularly those with which you disagree – are based on a reasonable interpretation of a constitutional provision or statutory text (even if you disagree with that interpretation). In other words, are such rulings legally defensible? Do they reflect a good-faith effort to interpret text, precedent, and history, or do they evince a desire to reach outcomes that comport with a nominee’s policy predilections? If the latter, that would be a reason to oppose a nominee. But opposing a nominee because you disagree with their interpretive philosophy, opinion of Roe v. Wade, or support for “substantive due process” is unwarranted and unfair.

***

Finally, the confirmation process should be about the nominee as an individual, not as a member of a group. While increasing the Court’s diversity is a vital and laudable objective, President Biden made a mistake when he indicated that he would only consider nominating a Black woman. President Biden should have simply nominated Judge Jackson because she is eminently qualified and incredibly accomplished. She has impeccable character. In short, her qualifications, experience, and character are second to none.

And as stated above, Robert Bork, who was also incredibly accomplished, should have been confirmed.

Likewise, Brett Kavanaugh was rightly confirmed, as Senator Susan Collins argued in her speech supporting Kavanaugh’s confirmation.[8]  

The same is true for Justices Sonya Sotomayor Amy Coney Barrett, Neil Gorsuch, Elena Kagan, Samuel Alito, and John Roberts. What reasons – besides those reflecting ideology, bias, and politics – justified voting against any of these nominees? None.

Remember the days when the United States Senate confirmed Antonin Scalia by a vote of 98-0 and Ruth Bader Ginsburg by a vote of 96-3? Both were among the most outstanding justices in the Court’s history and their confirmation enjoyed bipartisan support. They were also friends, which shows that you can disagree with someone and still maintain a healthy relationship.

Judge Jackson deserves bipartisan support too. The time has come to stop politicizing the confirmation process and the Court. She should be confirmed.

 

[1] See Myah Ward, Blackburn to Jackson: Can You Define ‘The Word Woman’? (March 22, 2022), available at: Blackburn to Jackson: Can you define ‘the word woman’? - POLITICO.

[2] See Dani Di Placido, Ted Cruz’s Bizarre ‘Antiracism Baby’ Tirade Backfires (March 24, 2022), available at: https://www.forbes.com/sites/danidiplacido/2022/03/24/ted-cruzs-bizarre-antiracism-baby-tirade-backfires/.

[3] See Linda Qiu, Critics of Jackson’s Child Sex Abuse Sentences Backed Judges With Similar Records (March 25, 2022), available at: Critics of Jackson's child sex abuse sentences backed judges with similar records - The San Diego Union-Tribune (sandiegouniontribune.com).

[4] See, e.g., Chris Smith, He Seems So Hammed Up: Cory Booker Battles Rivals Who Say He Has An Authenticity Problem (January 25, 2019), available at: “He Seems So Hammed Up”: Cory Booker Battles Rivals Who Say He Has an Authenticity Problem | Vanity Fair.

[5] For example, 850 female law professors signed a letter supporting Justice Jackson’s nomination. But only a fraction of that number supported Amy Coney Barrett. Why? Ideology.

[6] Ilya Shapiro, The Original Sin of Robert Bork (September 9, 2020), available at: The Original Sin of Robert Bork | Cato Institute. (emphasis added).

[7] See, e.g., Susan Adams, Hundreds of Notre Dame Faculty Sign Letters Opposing Amy Coney Barrett Nomination (October 14, 2020), available at: Hundreds Of Notre Dame Faculty Sign Letters Opposing Amy Coney Barrett Nomination (forbes.com); Alliance for Justice, 5,000+ Lawyers Sign Open Letter Opposing Amy Coney Barrett SCOTUS Nomination, (October 9, 2020), available at: 5,000+ Lawyers Sign Open Letter Opposing Amy Coney Barrett SCOTUS Nomination — AFJ.

[8] See Brit McCandless Farmer, Why Susan Collins Votes “Yes” on Brett Kavanaugh (October 7, 2018), available at: Why Susan Collins voted “yes” on Brett Kavanaugh - 60 Minutes - CBS News.

https://lawprofessors.typepad.com/appellate_advocacy/2022/03/a-few-thoughts-on-ketanji-brown-jackson.html

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Comments

I certainly generally agree, but, let's not forget that Bork described the 9th Amendment as an "inkblot," subject to no reasonable interpretation by judges. No provision of the Constitution is beyond interpretation. Additionally, Bork made unsupported claims regarding Art. II authority. There may have been Bork claims that might reasonably justify wondering if his constitutional understanding was too idiosyncratic and personal.

Posted by: Peter Bayer | Mar 27, 2022 5:44:01 PM

“[D]isagreement with a nominee’s interpretive philosophy (e.g., originalism or living constitutionalism) or disagreement concerning how a nominee might rule on specific legal issues (e.g., abortion) should never be a legitimate basis upon which to reject a nominee.”

Much of the opposition to Kavanaugh was –rightly—motivated by the justified conclusion that he committed perjury and that the Senate Committee on the Judiciary Committee ignored witnesses who could have rebutted some of his testimony. That is not “disagreement with a nominee’s interpretive philosophy….”
Much of the opposition to Gorsuch was –rightly—motivated by the justified conclusion that Sen. Mitch McConnell had so politicized the confirmation process by blocking Senate consideration of President Barack Obama’s nomination of Judge Merrick Garland. That is not “disagreement with a nominee’s interpretive philosophy….”
Much of the opposition to Barrett was –rightly—motivated by the justified conclusion that President Donald Trump Sen. Mitch McConnell had so politicized the confirmation process by allowing Senate consideration of her nomination so close to a presidential election, when McConnell had blocked consideration of Judge Garland. That is not “disagreement with a nominee’s interpretive philosophy….”
And certainly, opposition to Clarence Thomas was –and now is—motivated by much more than “disagreement with [his] interpretive philosophy….”

Posted by: Kent Hull | Mar 27, 2022 7:18:07 PM

Thanks for the comment, Peter. Regarding Bork, it seems like you are making an argument that he lacked the judicial temperament necessary to serve on the Court. If so, that's certainly a legitimate reason to oppose him. But in recent years, opposition to SCOTUS nominees in my view has been based primarily on ideology, which I believe is wrong.

Posted by: Adam Lamparello | Mar 27, 2022 7:34:21 PM


Thank you for the comment Kent. Regarding Kavanaugh, I don’t believe that the evidence was sufficient to justify opposing his confirmation, as prosecutor Rachel Mitchell explained in her memo (citing, among other things, the inconsistencies in Ford’s testimony and the lack of corroborating evidence) and as Senator Collins explained in her speech supporting his confirmation. Also, the individuals at the alleged party, including Ford’s best friend Leland Keiser, had no recollection of meeting Kavanaugh. And Julie Swetnick was not, in my view, credible. I also found it quite revealing that Ford’s attorney acknowledged that Ford was motivated to come forward in part by the belief that Kavanaugh would overturn Roe. Regarding Gorsuch and Barrett, there was not in my view any principled basis upon which to oppose their confirmations, as they were both incredibly accomplished and of impeccable character. I do agree with you that Senator McConnell was wrong – very wrong – to deny Merrick Garland even a hearing, but I don’t think that it justified doing the same thing to Gorsuch and Barrett – or to any other nominee. Otherwise, you’d be endorsing the very strategy that you rightfully criticize and make it impossible to timely fill vacancies on the Court. Regarding Thomas, I can certainly understand opposing him based on Anita Hill’s allegations, but the opposition in my view was based primarily on disagreement with his conservative judicial philosophy.

Posted by: Adam Lamparello | Mar 27, 2022 8:06:00 PM

Thank you, Adam, for your reply. We differ on the strength of the Christine Blasey Ford’s testimony against Kavanaugh. My view is that the principal challenge to her credibility—the report of Investigative Counsel Rachel Mitchell—was so inept that it reinforced Blasey Ford’s credibility.
Apart from Blasey Ford, other witnesses not called—and apparently not even interviewed by the FBI—were fellow students of Kavanaugh at Yale who contradicted his testimony about his drinking as an undergraduate.
The point is that –whatever a nominee’s professional qualifications--perjury is an automatic disqualifier, and that factor alone motivated much of the opposition to his confirmation, not ideological disagreement.
Moreover, Gorsuch and Barrett benefitted from and acquiesced in McConnel’s tactics. They are on the Court because of what he did. And that fact—not just ideological opposition—motivated much of the opposition to their confirmation.

Posted by: Kent Hull | Mar 28, 2022 8:20:53 PM

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