On Friday, President Joe Biden announced his pick for the United States Supreme Court: Judge Ketanji Brown Jackson of the D.C. Circuit.
Immediately after her nomination, Judicial Action Group (“JAG”) released a research memorandum on Judge Jackson and posted its findings on its website here.
After examining JAG’s in-depth research, here’s what I think: Judge Jackson is a conscientious, careful, and detailed judge who, from what I can see, has a good reputation among the bench and bar. She has also tried not to leave a paper trail on controversial issues, which was probably a major factor in why Biden thinks he can get her through a sharply divided Senate. Nevertheless, there is enough evidence in her record to show that her approach to religious liberty, the right to life, and freedom of speech would be problematic.
Before getting into that, let me elaborate on why Judge Jackson was an appealing pick for Joe Biden.
Judge Jackson graduated from Harvard Law School and clerked for Justice Stephen Breyer, the man whom she is being asked to replace. She has academic and professional affiliations with Harvard University, the George Washington School of Law, the American Law Institute, and the Supreme Court Fellows Program, among others. When many lawyers and judges look at that resume, they think that this is an attorney who values professionalism and excellence. According to the JAG research, the New York Times has described her as “detailed,” “meticulous,” and “thorough … sometimes to a fault.”
Moreover, according to Senator Ted Cruz, Judge Jackson “has been very, very careful” to say “little that reveals her political orientation.” This appears to be true. Judge Jackson has mostly stayed away from hot-button issues. Her resume reveals that she has more of an interest in criminal procedure and sentencing than anything else.
Nevertheless, JAG found a number of problems with her record.
First, she has declined to be straightforward about her judicial philosophy. When she was being confirmed as a federal trial judge in 2013, she initially said that she disagreed with the living-constitution theory. However, when she was nominated to the D.C. Circuit in 2021 and asked the same question, she declined to answer, claiming that she lacked the expertise to form an opinion.
This alone is troubling enough to warrant more scrutiny during her confirmation hearings. The Constitution is not a living document. Its meaning is fixed, and it can be changed only through the amendment process.
Next, her answers on religious liberty have been troubling. During her confirmation to the D.C. Circuit, when asked about almost every other area of the Constitution, she gave textbook answers. But when it came to religious freedom, she said that the federal courts had been “actively elevating the scope” of religious liberty. This suggests that she thinks the courts are going too far in protecting religious exercise. She also declined to answer whether Americans have religious freedom only because of Supreme Court precedent. The obvious answer to that should have been no.
As to life and free speech: when she was a new lawyer, she filed an amicus brief for NARAL, one of the largest pro-abortion groups in the country, in a case involving sidewalk counselors outside of an abortion clinic. She later described this as a “free speech case.” However, she took the side of the abortion clinic in attempts to silence the counselors’ speech. The more accurate description would be an “anti-free speech case.”
The JAG memo lists other problems. For instance, she was quick to distance herself from the views of Montrose Christian School, where she served as a board member, after learning that the school supported traditional marriage. Her biggest decision as a trial judge involved forcing President Trump’s former White House Counsel to appear before the House Judiciary Committee and testify, which raises separation-of-powers concerns.
So, what should the Senate Republicans do?
Above all, they need to question Judge Jackson at length about these matters and get solid answers about her judicial philosophy before considering voting yes. This does not mean that they need to be ugly to her or pretend that she would be the most radically left justice ever. Senate Democrats have turned confirmation hearings into a circus, but Republicans should not follow suit. They can respect her professionalism but still ask the key questions on issues that matter.
Some Republican Senators like Lindsey Graham have a philosophy that the President’s choice is entitled to great deference. That may be true for cabinet picks, but not for Supreme Court Justices.
So here’s my advice for the Senate: address the key problems, vote “no” unless she demonstrates that she will apply the Constitution according to its text and original meaning instead of changing the law under the guise of interpreting it, and do it all with class.
Matt Clark is the President of the Alabama Center for Law and Liberty, a conservative nonprofit law firm that fights for limited government, free markets, and strong families in the courts. The opinions expressed in this column are those of the author. The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to Commentary@1819News.com.
