What Senators Must Ask Supreme Court Nominee Ketanji Brown Jackson About Her Record, Judicial Philosophy

COMMENTARY Courts

What Senators Must Ask Supreme Court Nominee Ketanji Brown Jackson About Her Record, Judicial Philosophy

Feb 28th, 2022 8 min read

Commentary By

John Malcolm @malcolm_john

Vice President, Institute for Constitutional Government

Thomas Jipping @TomJipping

Senior Legal Fellow, Center for Legal and Judicial Studies

Ketanji Brown Jackson, circuit judge on the U.S. Court of Appeals for the District of Columbia Circuit, makes brief remarks on February 25, 2022 in Washington, D.C. Drew Angerer / Getty Images

Key Takeaways

President Joe Biden has nominated U.S. Circuit Court Judge Ketanji Brown Jackson to replace retiring Supreme Court Justice Stephen Breyer.

While on the bench, Jackson has issued some opinions that should trouble Republicans on the Senate Judiciary Committee. 

Jackson should be asked some tough question about whether she believes that courts should be overtly political institutions.

President Joe Biden has nominated U.S. Circuit Court Judge Ketanji Brown Jackson to replace retiring Supreme Court Justice Stephen Breyer. Who is Jackson? What is her judicial philosophy? And how should senators evaluate her nomination?

Here’s what you need to know.

Jackson’s rulings and previous comments offer clues as to why Biden nominated her to replace Breyer. She is a favorite of left-wing special-interest groups and was among the top front-runners for the seat.

At 51, she is just a year older than Justice Antonin Scalia was at the time of his 1986 appointment. He served for nearly 30 years.

With the Senate divided equally between Democrats and Republicans, it would take a defection from Biden’s party to block Jackson’s confirmation. Still, the most important task for the Senate is to determine, on the basis of Jackson’s legal experience and judicial philosophy, whether she is qualified for this lifetime appointment.

The Heritage Foundation publication “Supreme Consequences: How a President’s Bad Judicial Appointments Threaten Your Liberty” defines what makes a good judge or a bad judge.

Senators should evaluate Jackson using these criteria:

  • Is she committed to faithfully applying the Constitution and statutes by relying on their original public meaning?
  • Is she fair and impartial, putting facts ahead of her personal opinions?
  • Does she understand that a judge’s role is limited?
  • Will she reject outcome-oriented decisions?

Who Is Ketanji Brown Jackson?

Jackson was born in Washington, D.C., but grew up in Miami. She has clerked for three judges, including Breyer, and also worked with major corporate law firms and as a federal public defender in Washington.

While in private practice, Jackson signed onto an amicus curiae (friend of the court) brief on behalf of several pro-abortion groups defending a Massachusetts law that created a 6-foot “floating buffer zone” around abortion clinics, and another on behalf of former federal judges arguing that the Detainee Treatment Act was not an adequate substitute for federal habeas corpus (a position that the Supreme Court ultimately adopted).

As a public defender, she represented a Guantanamo Bay detainee seeking habeas corpus review to challenge his classification as an “enemy combatant.”  

The Senate unanimously approved Jackson’s 2005 nomination to the U.S. Sentencing Commission, where she had previously served as an assistant special counsel, and her 2013 nomination by President Barack Obama to the U.S. District Court.

Jackson’s nomination by Biden last year to the D.C. Circuit Court of Appeals, however, was not as smooth. The Senate ultimately voted to approve her nomination by a narrow 53-44 tally, with Republican Sens. Susan Collins of Maine, Lisa Murkowski of Alaska, and Lindsey Graham of South Carolina joining all 50 Democrats to confirm her.

What Is Jackson’s Judicial Record?

While on the bench, Jackson has issued some opinions that should trouble Republicans on the Senate Judiciary Committee. 

In 2019, in Committee on the Judiciary v. McGahn, Jackson rejected a claim of executive privilege and held that former White House Counsel Don McGahn would have to testify before the House Judiciary Committee, stating, “Simply put, the primary takeaway from 250 years of recorded American history is that Presidents are not kings.” Her ruling was ultimately upheld by the D.C. Circuit sitting en banc. 

Also in 2019, in Make the Road N.Y. v. McAleenan, Jackson granted an injunction in favor of immigration advocacy groups challenging the secretary of the Department of Homeland Security’s designation of aliens for expedited removal. She was reversed by the D.C. Circuit, which held that the DHS secretary had “sole and unreviewable discretion” to make such determinations.  

In 2019, in Brown v. Government of the District of Columbia, Jackson denied a motion to dismiss a First Amendment challenge to D.C.’s Panhandling Control Act. The five plaintiffs were arrested for violating this statute, which defines panhandling as asking or begging for, or soliciting, alms by the spoken, written, or printed word. Jackson concluded that their complaint “plausibly alleges a viable First Amendment claim,” primarily by alleging that panhandling constitutes expressive conduct.

In 2018, in Policy and Research v. HHS (and a companion case), Jackson ruled that the Department of Health and Human Services’ decision to terminate grants for teen pregnancy prevention programs two years early was arbitrary and capricious under the Administrative Procedures Act.

After joining the D.C. Circuit, Jackson signed onto an opinion upholding a lower court decision rejecting former President Donald Trump’s effort to block the release of documents being held by the National Archives to the House of Representatives’ Jan. 6 committee. The Supreme Court refused to intervene, with only Justice Clarence Thomas dissenting.

And in her first written majority opinion, AFL-CIO v. FLRA, Jackson invalidated a 2020 rule by the Federal Labor Relations Authority that had restricted the bargaining power of federal-sector labor unions.

What Is Jackson’s Judicial Philosophy?

Jackson’s judicial philosophy, or her understanding of the power and proper role of judges in our system of government, should be a significant factor in the Senate’s confirmation process.

Last year, she told the Senate Judiciary Committee that she did not have a “judicial philosophy per se” but was bound, as a lower court judge, by Supreme Court precedent.

In response to written questions from Sen. Charles Grassley, R-Iowa, she wrote that she was “bound by the methods of constitutional interpretation that the Supreme Court has adopted, and I have a duty not to opine on the Supreme Court’s chosen methodology or suggest that I would undertake to interpret the text of the Constitution in any manner other than as the Supreme Court has directed.” 

Of course, it is individual justices, not the high court as a whole, who adopt the “methodology” that they think is most appropriate when it comes to interpreting the Constitution. Moreover, she will be free from any constraints she might otherwise have felt as a lower court judge if she is elevated to the Supreme Court. 

It is essential that senators ask probing questions about her judicial philosophy.

While there may not yet be much to go on directly from her at this point, we do know what the Biden administration and its political allies want from their judicial appointees.

They have firmly embraced an explicitly political view of the judicial branch and the judges who serve there. They use cliches and vague phrases such as “personal and professional diversity” and the need for courts to “look like America,” but their plan is to appoint judges who will deliver results that favor certain groups and serve certain interests.

Last March, for example, more than 30 liberal groups urged senators to recommend for judicial appointment lawyers from certain sectors of the legal profession, such as public defenders and legal aid attorneys. They candidly admitted their hope that such lawyers, once they become judges, will produce politically desirable results, citing research published by the radical activist group Demand Justice that, they said, showed judges with certain legal backgrounds are more likely to rule a particular way on particular issues.

Jackson was on that group’s list of recommended Supreme Court nominees, so it is fair game to ask her whether she thinks her race, gender, or service as a public defender will make a difference in her judicial decisions.

Jackson has suggested that such personal factors should not matter when a judge handles cases. Last year, after the hearing on her appeals court nomination, she responded to written questions from Sen. Ted Cruz, R-Texas, and stated that judges should take the same approach in every case, “no matter who or what is involved in the legal action.”

She has characterized impartiality, which is required by the oath of judicial office, as a constitutional mandate.

Moreover, Jackson responding to a question from Sen. Mike Lee, R-Utah, wrote that a judge “has a duty to decide cases based solely on the law … [T]o the extent that empathy is defined as one’s ability to share what another person is feeling from the other person’s point of reference, empathy should not play a role in a judge’s consideration of a case.”

That appears to contradict the statement of Senate Majority Leader Charles Schumer, D-N.Y., that judges must “be able to understand each litigant’s lived experience” in order to “apply the law equitably.”

Will Jackson be the kind of justice who thinks she “represents” constituencies and must follow her own sense of “equitable” justice, as the Biden administration wants? Or will she be the kind of justice who serves the law and seeks impartial justice?

These are radically different paths for the judiciary, but only one is consistent with our liberty.

Who Are Jackson’s Supporters?

Whenever a Republican president has made a Supreme Court nomination, Democrats have cited the groups supporting that nominee as evidence of how he or she would make decisions.

If that is a legitimate argument, then it should also apply to Biden’s nominee. Jackson was recommended for nomination by Demand Justice, which advocates for an overtly political judiciary and has helped lead the charge for court-packing. It also wants to abolish the legislative filibuster and has called Trump’s appointment of Justices Neil GorsuchBrett Kavanaugh, and Amy Coney Barrett “illegitimate.”

Demand Justice is headed by Brian Fallon, described by CNN as “a former top aide to Senate Majority Leader Chuck Schumer.”

The web of so-called dark money groups gets even more complicated. As Politico reported, Jackson “enlisted Robert Raben … to help with the deluge of press scrutiny.” A principal in Raben’s public affairs firm, Jeremy Paris, was chief nominations counsel for Sen. Patrick Leahy, D-Vt., and is executive director of the Committee for a Fair Judiciary, another advocate of judges who would champion liberal causes.

On that group’s board sits Chris Kang, who advised the Obama administration on judicial nominations and is … wait for it … chief counsel of Demand Justice.

A dozen liberal groups, led by Demand Justice, sent a letter to Biden earlier this week urging him to nominate someone “with public defense experience to the Supreme Court.” Jackson was the only leading candidate for the forthcoming Breyer vacancy with such experience.

One news report described the letter as “unmistakenly crafted to boost Jackson … in the final stretch before a decision.” That alone should give Republican senators pause.

Jackson should be asked some tough question about whether she shares their views that Lady Justice should remove her blindfold and tip the scales and that courts should be overtly political institutions.

This piece originally appeared in The Daily Signal