Judge Jackson Can’t Answer Rudimentary Questions About Her Judicial Philosophy

Asked Repeatedly By Senators On The Judiciary Committee Today To Describe Or Explain Her Judicial Philosophy, Judge Ketanji Brown Jackson Struggled To Give A Straightforward Answer, Said She Hadn’t Thought About Other Justices’ Philosophies, And Claimed Her Own Judicial Experience Didn’t Give Her Any Insights Either


SEN. BEN SASSE (R-NE): “It still appears to me that there’s a very basic difference between a judicial philosophy and a judicial methodology, and how you go about applying that when you’re interpreting a law and making a determination about constitutionality or non.” (U.S. Senate Judiciary Committee Hearing, 3/22/2022)


Judge Jackson Invalidated Her Own Judicial Experience, Saying That ‘The Issue Of Constitutional Interpretation … Doesn’t Come Up Very Often In The Lower Courts’

SEN. SASSE: “So, I guess I’m surprised after nine years on the bench that -- I mean, you’re super smart. Nobody disputes that. And having worked for Justice Breyer and knowing of some of the fights -- some of the philosophical arguments he and Justice Kagan had, it just seems surprising that you wouldn’t be able to at least speculate -- not speculate, but reflect a little bit on the nature of those disagreements. Because to say it depends on the particular case, that’s fine, but they have different philosophical and hermeneutic approaches to the text. So, may -- maybe another way to get at it, I think Justice Breyer, again for whom you clerked, and Justice Scalia used to travel together and have lively debate circuit conversations. Can you tell the American people a little bit about what Breyer-Scalia Roadshow looked like? What were they arguing about?”

JUDGE KETANJI BROWN JACKSON: “Well, my understanding is they were arguing, or at least presenting, two different viewpoints as to how the Constitution should be interpreted. And I would say, just as an aside before talking about their positions, that while I have been on the bench for nine plus years, the issue of constitutional interpretation in that sense doesn’t come up very often. It comes up to the Supreme Court for sure, but it doesn’t come up very often in the lower courts.” (U.S. Senate Judiciary Committee Hearing, 3/22/2022)

Interestingly, Judiciary Committee Chairman Dick Durbin (D-IL) Claimed That Judge Jackson’s Philosophy Supposedly Would Be Evident In Her Lower Court Experience

SEN. DICK DURBIN (D-IL): “Judge Jackson, there are two issues that came up repeatedly yesterday from the other side of the aisle that I want to address at the outset. One of them was a question about judicial philosophy. No one questions either your academic law school credentials or your service as clerk and as federal judge. But time and again, you have been asked what is your judicial philosophy. Does it fit into Scalia’s originalism, Kavanaugh’s textualism? Is it strict construction? Is it liberal? Is it conservative? Lo and behold, I’ve discovered the answer. It turns out that, during the course of your time as a judge, you have actually had written opinions, 573 to be exact, I think. Maybe I’m off by one or two. And they more or less express your view of the law as the facts are presented to you in each one of those cases … You have a record when it comes to court decisions, and this committee, for the fourth time, is delving into everything that you’ve published as a judge and even before.” (U.S. Senate Judiciary Committee Hearing, 3/22/2022)


Asked By Republican Senators What Her Judicial Philosophy Is After All Her Time On The Bench, Judge Jackson Did Not Have Any Straightforward Answers

SEN. LINDSEY GRAHAM (R-SC): “What is your judicial philosophy?”
JUDGE JACKSON: “So, I have a methodology that I use in my cases in order to ensure that I am ruling impartially and that –“

SEN. GRAHAM: “So, your judicial philosophy is to rule impartially.”

JUDGE JACKSON: “No, my judicial philosophy is to rule impartially and to rule consistent with the limitations on my authority as a judge. And so, my methodology actually helps me to do that in every case.” (U.S. Senate Judiciary Committee Hearing, 3/22/2022)

SEN. MIKE LEE (R-UT): “Now, on February 1st of this year, President Biden said that he was -- he was looking for a Supreme Court nominee. This was, as I recall, right after Justice Breyer announced that he would be stepping down and before he had announced whom he might nominate; that he was looking for a nominee, with, ‘a judicial philosophy that’s more one that suggests that there are unenumerated rights to the Constitution and all new members mean something, including the Ninth Amendment.’ So do you -- do you share the judicial philosophy that President Biden described in that statement?”

JUDGE JACKSON: “Senator, I haven’t reviewed that statement, but I have not discussed anything about enumerated rights -- unenumerated rights with – ”

SEN. LEE: “With the President.”
JUDGE JACKSON: “With the President, yes.”

SEN. LEE: “So did President Biden ask you either about your judicial philosophy more broadly, separate and apart from the Ninth Amendment, or ask you about your approach to the Ninth Amendment?”
JUDGE JACKSON: “He did not.”
(U.S. Senate Judiciary Committee Hearing, 3/22/2022)


Republican Senators Tried To Get An Answer A Different Way, Asking If She Considered Her Views Close To Any Current Or Prior Supreme Court Justices, But Judge Jackson Said She Hadn’t Really Thought About That

SEN. CHUCK GRASSLEY (R-IA): “There’s 115 justices that served before you, if you are approved by the Senate. Is there any of them, now or in the past, that has a judicial philosophy that most closely resembles your own?”

JUDGE JACKSON: “You know, I haven’t studied the judicial philosophies of -- of all of the prior justices. I will say that I come to this position, to this moment, as a judge who comes from practice; that I was a trial judge and my methodology has developed in that context. I don’t know how many other justices, other than Justice Sotomayor, have that same perspective, but it informs me with respect to what I understand to be my proper judicial role.” (U.S. Senate Judiciary Committee Hearing, 3/22/2022)

SEN. SASSE: “I think it might be helpful for us to understand who you most identify with, and past nominees before this committee have talked about the mold of particular Justices they thought they followed in. And so, if you had to tell the American people who you’re closest to, who is that Justice, or who are those Justices?”

JUDGE JACKSON: “Well, thank you for the question, Senator. And I must admit that I don’t really have a Justice that I’ve molded myself after or that I would. What I have is a record. I have 570 plus cases in which I have employed the methodology that I described and that shows people how I analyze cases. I, in every case, am proceeding neutrally, from a neutral posture in every case.” (U.S. Senate Judiciary Committee Hearing, 3/22/2022)


Judge Jackson Could Not Even Explain The Judicial Philosophy Of Justice Breyer, For Whom She Served As A Clerk

SEN. SASSE: “And deciding that something is unconstitutional requires an interpretive framework for how you get there, right? And so, you and I talked to my office about the differences between Justices Kagan, Breyer, and Sotomayor’s judicial philosophies, and you told me that you needed time to study that issue further. So, assuming that you’ve had a chance to think about that a bit more, I guess I’d ask you again, what are the differences among the three of their judicial philosophies?”

JUDGE JACKSON: “With respect, Senator, I have not actually time, with all of my meetings with Senators and the work that I’ve done to appear before you today. I would say that there are differences, as you see from the various opinions that they have issued. I’m not sure which one I would necessarily follow because it depends on the case. I think their differences indicate that they are looking at different provisions.” (U.S. Senate Judiciary Committee Hearing, 3/22/2022)

SEN. SASSE: “And does Breyer have a different view?”

JUDGE JACKSON: “You know, I haven’t -- I’m just trying to think. I -- my understanding of the living constitutional principle is that it’s closer to looking at the needs of modern society. But I’m not well-versed in it in part because the Supreme Court has now so clearly taken the historical perspective -- the originalist perspective in its interpretations.” (U.S. Senate Judiciary Committee Hearing, 3/22/2022)

Nor Could She Even Say If She Follows Justice Breyer’s Judicial Philosophy

SEN. SASSE: “You have described Justice Breyer’s constitutional approach as pragmatic. What does that mean?”

JUDGE JACKSON: “I understand it to be and his approach to be about ensuring that the rules that follow from the Supreme Court’s determinations are ones that makes sense and are workable.”

SEN. SASSE: “He said recently explaining his approach to interpreting a statute. You’re not going to go outside the words, but it often doesn’t give you the answer. And you look at the history and you look at its purposes and you look at the consequences too, and you’ll try to evaluate them from that, the point of view of what a reasonable legislature writing the statute have thought that these words were there to achieve. Do you you align yourself with that position?

JUDGE JACKSON: “In the broad sense that what it is that the court is tasked with when statutory interpretation is being undertaken is to achieve the purposes of the legislature. The text is the primary and, in most cases, sole indication of what the legislature intended as opposed to the court saying I see this statute, but I’m, you know, uncomfortable with how it’s going to turn out or what it’s going to mean, and so I’m going to import my own policy perspective. Instead, the court is constrained to say regardless of what I think the right policy objective should be in this -- with respect to this law, my purpose, my requirement, is to determine what Congress intended.” (U.S. Senate Judiciary Committee Hearing, 3/22/2022)



Related Issues: Judicial Nominations, Supreme Court