Let’s start our analysis of Ketanji Brown Jackson with a bit of a reality check. This woman is going to get confirmed by the Senate. She certainly has all 50 Democrat votes in the Senate, which is all she needs since Kamala will place the deciding 51st vote for her confirmation if that is necessary. I will predict, however that she will also get as many as five Republican votes. This, however, might be a good sign that the Senate is returning to the “Advise and Consent” role they are intended to perform in confirming Supreme Court Justices rather than the “Search and Destroy” approach Democrats have taken recently. Just reflect back on the hearing for Brett Kavanaugh and Amy Coney Barrett.
The other reality about this nomination is that it will not change the balance of the Supreme Court. Ketanji Brown Jackson will be replacing Justice Breyer, for whom she clerked. Justice Breyer was a Clinton nomination, and while he is considered more moderate than Sotomayor or Kagen, he was a dependable liberal vote, especially on the key issues that have faced the court. The court will still maintain its 6-3 split with six justices nominated by Republican Presidents, and amazingly three of those six appointed by Donald Trump.
I didn’t watch every minute of Ketanji Brown Jackson’s Judiciary hearings, but I watched enough to get a feel for not only how I felt about her, but also how I expect the total Senate to vote. Her opening statement hit on a few chords that I actually liked. She thanked God for the opportunities she was given during her life. She also expressed a true love for this country and emphasized how much this country has progressed since her parents’ lifetimes, a concept that I have advocated for years.
She continually refused to describe her judicial philosophy, to which some Senators took exception. She did, however, take great care to describe her “judicial methodology” which I found even more helpful and sounded, at times, suspiciously like a philosophy. At these times she talked about how she always intended to pay scrupulous attention to the law and the Constitution and she was constantly trying to “stay in her lane”. In fact, I thought her methodology sounded very much like what I would have expected from one of my favorite, originalist Justices, the late, great Antonin Scalia.
She also praised her parents (and herself indirectly) for taking full advantage of reformation that has occurred since the 50’s here in America. She stated that they were able to reverse the effects of racism in just one generation. This is an idea that I hold along with W.E.B. DuBois which he expressed in his book, “The Souls of Black Folk”. DuBois proposed that, given the positive changes in access to opportunity in this country, each new generation offers black families the chance to totally reverse the effects discrimination in just one generation. A young black man or woman born today might even be able to become a Supreme Court Justice, or even President. I agree.
Ms. Brown Jackson had a few contentious exchanges with a few of the Republican Senators, but believe me, nothing like what Brett Kavanaugh or Amy Coney Barrett faced. She wouldn’t even try to define what a “woman” is, even though this could come before her and the court as transgender men / women (whatever) in sports becomes more and more common. Actually, that answer would probably have been a better one. She was pressed on her light sentencing of child porn cases, but I found her answers on that issue to be at least understandable. She is not the only judge who has given sentences below the guidelines and she did consistently call those crimes “heinous”. Actually, when Lindsey Graham grilled her in this area, I found myself feeling sympathy for her. Neither of these lines of questioning, however, provided an excuse for disqualification for me.
For me, the most concerning line of questioning came again from Lindsey Graham concerning the case of “Make the Road, New York v McAleenan”. This was a case where the Department of Homeland Security expanded the eligibility for expedited removal of illegal immigrants to those who had been in the country for up to two years. It had previously only been applied to those in the country for 14 days. This was a Trump era decision by DHS. The statute clearly stated that DHS had “sole and unreviewable discretion” to that determination. She struck that decision down and was reversed unanimously by a three-judge panel of the DC Court of Appeals. The DC Circuit Court could not have been stronger in its disagreement of her decision when it said, “there could hardly be a more definitive expression of Congressional intent to leave the decision…to the Secretary’s (of DHS) independent judgement”. Senator Graham was suggesting that this was an example of judge Brown Jackson legislating from the bench. And he was probably right, but she covered herself in this area by her “judicial methodology”.
As I stated earlier, she will be confirmed and I hope her treatment will become more of a model for future hearings vs. the Kavanaugh and Coney Barrett hearing, which were disgusting, especially Kavanaugh’s. Her confirmation will make the nomination of a Supreme Court Justice an issue in the 2028 Presidential election or even possibly in 2024. After Breyer retires, the next two oldest judges are Clarence Thomas (age 73) and Samuel Alito (age 71). For your convenience, below is a recap of the age and the President who nominated our current Supreme Court Justices.
Justice | Born | Nominated By | In | Leans | Age |
Stephen Breyer | 1938 | Bill Clinton | 1994 | Liberal | 83 |
Clarence Thomas | 1948 | George H.W. Bush | 1991 | Conservative | 73 |
Samuel Alito | 1950 | 2006 | Conservative | 71 | |
Sonia Sotomayer | 1954 | 2009 | Liberal | 67 | |
John Roberts | 1955 | 2005 | Swing | 66 | |
Elena Kagan | 1960 | 2010 | Liberal | 61 | |
Brett Kavanaugh | 1965 | 2018 | Conservative | 56 | |
Neil Gorsuch | 1967 | 2017 | Swing | 54 | |
Amy Barrett | 1972 | 2020 | Conservative | 49 |
It is foolish to try and put justices in the narrow "liberal" or "conservative" categories in the way we think about politics. The narrow binary thinking we do on political discourse really doesn't work for the Court, where maybe 5% of the cases fall in that way of thinking and even those are only loosely tied.
ReplyDeleteWith regard to the specific decisions, it is ironic that a professed conservative would criticize the DHS decision. One of the major conservative complaints of the last 40 years has been the growth of the administrative state and the dereliction of Congress to do its job and not just pass it off to the administrative state. Still, Lindsay Graham, making political points and not doing serious legal analysis, misstated the case as does Kevin here. Here is her opinion,
https://casetext.com/case/make-rd-ny-v-mcaleenan
A more accurate summary of the case can be found here (along with a number of others) It's the 6th case down:
https://www.lawfareblog.com/judge-ketanji-brown-jackson-national-security-law-readers-guide
The idea that she would not define a "woman" is a stupid soundbite. She is a judge and supposed to consider the facts of the cases before her and the application of the particular laws, not give answers to poor hypotheticals by granstanding senators. We would not want her to do that, regardless of who nominated her, and most judges refuse to answer such questions in the same way she did.
Also, the idea that Republicans don't want judges "legislating from the bench" is silly. If they didn't, Congress would pass laws that did not delegate so much of its powers to the executive branch to then be sorted out by the courts. But they don't dare take a stand, so they pass those laws, then file meaningless friend of the court briefs to show they were really opposed to this or that though they did nothing beforehand.
Much like their claims of being originalists, Republican talk on judicial philosophy is mostly just hot air.
"She was pressed on her light sentencing of child porn cases, but I found her answers on that issue to be at least understandable."
https://www.politifact.com/factchecks/2022/mar/24/josh-hawley/josh-hawley-misleads-judge-jackson-and-child-porno/
Sadly though, despite having actually being more accomplished than the two recent GOP nominees, she will likely not draw a single GOP vote. It's ridiculous partisanship which controls Congress, and as long as the base cares more about "owning the libs" most, that won't change.
Terrible last paragraph - "Despite being more accomplished" that should say. I'll add that Barrett, though she has a thin resume, should have been confirmed though the way in which she was confirmed was appropriate.
ReplyDeleteKavanaugh should never have been on a short list, if one is serious about having the best. He was a GOP operative and not much more. Jackson's greatest appeal to all of us should be that she has actually represented real people, not just gone from clerkship to professorship to Big Law representing the Fortune 500.
It will be interesting after midterms if a new justice appointment will even be allowed. I also believe when you calculate attacks from the left and right you have to include the fact Obama was not allowed to appoint his justice. Not even given a chance. In conservative terms, it was an abortion of justice. Otherwise I agree with most of the sentiment expressed. I like posts that are closer to the real middle like this post.
ReplyDeleteThanks Dale, and you should reread my article on the treatment of Merrick Garland:
Deletehttps://kevincanfield.blogspot.com/2016/03/merrick-garland-scotus-nominee.html
Sadly, the GOP is now in an interparty war where the flamethrowers and biggest fundraisers are accusing anyone who announced their intention to support the nominee as supporting pedophilia.
ReplyDeleteYet Liz Cheney is persona non grata.
Strange times. Thanks for the summary list of when they were appointed, Kevin.
Kevin I genuinely marvel that a decent person like you remains a Republican, especially in Arkansas when we've got a Senator like this:
ReplyDeletehttps://twitter.com/therecount/status/1511442180497416197?s=20&t=E5fhBkuzkb5J81_H-64uBA
Cotton says this because she once served as a public defender. There are public defenders because even poor people deserve to have their 6th Amendment rights, and in fact it's most important that the poor do have attorneys when faced with the might of the government charging them with a crime. One would think a Harvard Law graduate like Cotton would know this. In fact he probably does know, but he just doesn't care because he knows it's unlikely his base does care and he thinks it helps him in '24.
He would have hated John Adams, who defended the British soldiers at the Boston Massacre.
The ironic thing about his statement is the earlier Judge Jackson Cotton refers to would probably despise Tom Cotton. A thread with some of that Jackson's takes on the importance of full, and fair, trials, including at Nuremberg:
https://twitter.com/Popehat/status/1511502501060616201?s=20&t=E5fhBkuzkb5J81_H-64uBA
53-47 and a bunch of Republicans walked out when it was announced. You are in a party that doesn't share your values, Kevin.
ReplyDeleteWhen asked how many women would be enough for the Supreme Court, Ruth Bader Ginsberg proudly said, “When there are nine.” I think RBG would have liked to hear Ketanji Brown Jackson ring the bell for another WOMAN to be on this court.
ReplyDelete