It is with some trepidation that the nation approaches the Supreme Court confirmation hearings for Judge Ketanji Brown Jackson, which begin today. Will these hearings descend into a Twitter-mobbing reality TV show, or will they focus on the qualifications of Judge Jackson?
Americans have good reason to pay attention. For better or worse, the reach of the Supreme Court extends well beyond arcane legal questions. It is much more than a mere court of law; its decisions affect a wide array of economic and social issues of national importance. Over the recent decades, it has become less and less shy about inserting itself into policy matters large and small.
Because of the Court’s influence on national policy, and because of the presence of television cameras, the Senate’s review of Supreme Court nominations no longer plays out in hushed chambers with polite questions and thoughtful answers. Starting around 35 years ago, the process has evolved into a three-ring circus: the center ring consisting of televised hearings with senators preening for the cameras with made-for-constituent speeches, surrounded by partisan media frenzies and public demonstrations both inside and outside Senate chambers. When it comes to Supreme Court hearings, senatorial courtesy and decorum have been largely dead for a generation.
For example, take the ill-fated 1987 hearings of Robert Bork, who, like Judge Ketanji Brown Jackson, was a DC Circuit Court judge. Senator Ted Kennedy gave an incendiary speech complaining that “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.” While Robert Bork was hardly a libertarian, neither was he the misogynist Nazi in Klan robes that Kennedy portrayed.
Kennedy was grandstanding—using the hearing as an opportunity to launch a partisan attack rather than an opportunity to evaluate the nominee on his qualifications.
It is in this context that our current senators face an important question: Should they base their questions and votes on whether Judge Jackson is qualified to be a Justice, or on whether they agree with her judicial philosophy?
Should they treat her like a great majority of the senators treated Justices Sonia Sotomayor and Elena Kagan—both of whom received fair, polite hearings and received “yes” votes from many conservative senators, despite their philosophical differences?
Or should they follow the path of those who opposed highly qualified conservative nominees because they would not vote for a nominee with whom they (or their base) had philosophical differences? Then-Senator Joe Biden voted against Justices John Roberts and Samuel Alito, and even tried to filibuster Alito, over philosophical differences. And Senator Biden expressed his opposition to Justice Clarence Thomas by waving a copy of the pro-property rights book Takings, by Professor Richard Epstein, and insinuating that if Thomas agreed with it, Biden couldn’t vote for him.
Certainly, the senators should ask hard questions.
But they should not ask questions that border on character assassination. Whether Judge Jackson received her nomination as the result of affirmative action would be no more appropriate to ask than it would have been in questioning the credentials of Justice Sandra Day O’Connor (who received unanimous approval) or Justices Thurgood Marshall or Thomas.
However, it would be appropriate to ask her for thoughts on the meaning of the Equal Protection Clause and whether her membership on Harvard University’s governing board could impact her decision whether to recuse herself from a pending affirmative action case against Harvard.
Questioning can go only so far in learning where a potential Justice might stand on important questions involving originalism, abortion, alleged LGBTQIA discrimination, or affirmative action. So much of what we’ve witnessed at the hearings in recent decades has been a televised Kabuki theater where everyone plays their expected roles in a show we’ve seen over and over again. All senators must open with their own speeches for the folks back home. All nominees will profess to be in love with the Constitution and America. None of the nominees will have made up their mind about any issue that might come before them. And even if they have given an issue a bit of thought, they certainly cannot discuss it now. And no nominee has the temerity to call a senator’s question idiotic, though there certainly have been more than a few of those.
Judge Jackson has had only a very limited tenure at the Court of Appeals and her work as a trial judge does little to reveal the full measure of her judicial philosophy. Of course, she is known for skewering President Trump’s assertion of out-of-office executive privilege with the remark that “the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings.” But shorn of its hothouse political environment, that sentence alone shouldn’t be controversial. Presidents are not kings. And neither are our senators and justices.
In the end, the Senate should use the hearings as an opportunity for Judge Jackson to lay out her overarching judicial philosophy. How would she go about interpreting statutes and the Constitution? When is it appropriate for a Court to discern rights not explicitly spelled out in the Constitution? How should a Court go about harmonizing the rights of two groups that may be in conflict with one another? And how humble should a judge be in making pronouncements that may affect generations of Americans?
There is a lot at stake with any judicial nomination. The Senate should do its job and do it correctly. Ask questions and vote according to whether this nominee is likely to uphold the laws and Constitution of the United States.