Wink-and-a-nod nomination: Who really is Ketanji Brown Jackson?
For many liberal groups, Ketanji Brown Jackson is a supreme “deliverable” by President Biden. Activist groups have pushed her nomination to the Supreme Court while opposing the consideration of fellow short-lister District Judge J. Michelle Childs. These groups clearly did not like Childs and her more moderate take on legal issues. Yet the interesting question is, what did they see in Judge Jackson that made her the preferred choice? It seems to be widely understood but barely discussed.
Jackson received a rather unenviable start to her nomination. Without any real pressure on timing, the White House announced its selection of the D.C. circuit judge even as Ukrainians were fighting street by street for their freedom. The “now for something completely different” moment was quickly overshadowed by images of the agony abroad.
That decision follows Biden’s unnecessary, unprecedented pledge to consider only Black females for a vacancy on the court — the very type of threshold criteria that the court has declared unconstitutional or unlawful for schools or businesses. (Jackson herself previously rejected Biden’s premise for imposing his threshold racial and gender exclusion, stating during her appellate confirmation hearing that “I don’t think that race plays a role in the kind of judge that I have been and would be.”)
With a sterling academic and professional resume, she deserved a much better framing and timing for her nomination.
Jackson always has been the front-runner in this process. Activist groups such as Demand Justice, which has led efforts to pack the court and to hound Justice Stephen Breyer into retiring, pushed her nomination while opposing Judge Childs, whom they considered too moderate and tough on crime. This concerted opposition campaign, which included the Our Revolution group aligned with Sen. Bernie Sanders (I-Vt.), painted Childs as anti-union and pro-employer too.
While these advocates and others all agreed that Jackson was the best choice, they have not explained clearly why. NBC News declared that “Jackson fits well with the Democratic Party and the progressive movement’s agenda.” Yet the confirmation process is designed to guarantee that we do not have wink-and-a-nod nominations where agendas are to be fulfilled but not discussed.
Jackson has an extremely limited written record to review — something considered an advantage for a nominee. Most of her district court opinions are not very illustrative of her views or approach to the law. She did write several very long opinions as a district court judge but has only one published opinion as an appellate judge. That opinion, a win for unions against a federal agency, was released roughly 24 hours before her nomination. She has remarkably little else written beyond these limited opinions.
Liberals want a justice who is willing to expand the meaning of the Constitution without constitutional amendments. President Biden stressed that his nominee must follow a “living constitution” approach, including a broad view of “unenumerated rights.” When asked if she supported such an approach, Childs answered “no.” Jackson, in contrast, has been far more obscure and conflicted in her response.
When she was nominated for the district court, Jackson answered “no” to that question. However, when nominated for the appellate court (and widely discussed as a future Supreme Court nominee), she became more evasive and, frankly, baffling in her answer: She told the Senate that she simply did not have experience with such interpretations as a judge.
It was a bizarre response since the question concerned her judicial philosophy. After all, Jackson has a distinguished academic background and a long career in legal practice. She is clearly familiar with this core concept of liberal constitutional interpretation. (Her answer reminded some of us of when Justice Clarence Thomas testified that he really had not thought much about Roe v. Wade.)
Her answer also made little sense since she had no difficulty responding to the question in her prior confirmation. When again pressed on the issue, Jackson’s position became unintelligible. She told the Senate that she is “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.”
That answer was mystifying. She is bound to follow the precedents of the Supreme Court — but she is allowed to have her own philosophy on constitutional interpretation, and other judges have answered the same question. Indeed, past nominees have gone into some detail on their approaches to interpreting the Constitution while avoiding how they would rule on particular cases. Justice Amy Coney Barrett not only refuted the premise of the living constitution theory but expressly embraced an originalist interpretative approach.
What is known is that Jackson has faced pushback for exceeding her constitutionally or statutorily defined role in cases.
For example, in 2019, she wrote a lengthy opinion in Make the Road New York v. McAleenan in favor of immigration groups challenging the Department of Homeland Security’s expansion of the expedited-removal process to the statutory limit. Jackson surprisingly ruled that she had authority to enjoin the policy despite a federal law stating the question was left to the “sole and unreviewable discretion” of the agency. The D.C. Circuit reversed Judge Jackson as exercising considerable judicial overreach. The lone judge in dissent did not find in Jackson’s favor but instead cited her for a different error in exercising jurisdiction over the challenge.
Judge Jackson also was accused of judicial overreach in American Federation of Government Employees v. Trump in 2018, when she stopped the Trump administration from implementing provisions limiting the ability of federal workers’ unions to collectively bargain. Noting that Jackson was a prospective choice for the Supreme Court, The Washington Post heralded the ruling as a major victory for unions. However, a unanimous ruling by the D.C. Circuit held that Jackson lacked jurisdiction to decide the case because the statute clearly mandates such challenges must be brought first in the agency process and that judicial review is then available in the courts of appeals.
Those reversals evidence a more fluid approach to statutory interpretation that even more liberal judges found to be beyond the pale.
While confirmation hearings often are reduced to little more than political kabuki theatre, Jackson’s hearing will be far more important because of the lack of information about her views on key issues. She has a fraction of the written record of nominees such as Barrett or Justice Neil Gorsuch. In the end, Judge Jackson is likely to be confirmed. But her confirmation should be based on advice and consent, not a wink and a nod.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.
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