Senators must ask Ketanji Brown Jackson about his judicial philosophy

President Joe Biden has appointed US Circuit Court Justice Ketanji Brown Jackson to replace outgoing Supreme Court Justice Stephen Breyer. Who is Jackson? What is his legal philosophy? And how should senators assess his nomination?

Here’s what you need to know.

Jackson’s decisions and previous comments offer clues as to why Biden nominated her to replace Breyer. She is a favorite of left-leaning special interest groups and was an early favorite for the seat.

At 51, she is only a year older than Justice Antonin Scalia when he was appointed in 1986. He served for almost 30 years.

With the Senate split evenly 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, based on Jackson’s legal experience and judicial philosophy, whether she is qualified for that 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 assess Jackson using these criteria:

  • Does it undertake to faithfully apply the Constitution and the laws based on their original public sense?
  • Is she fair and unbiased, putting facts before her personal opinions?
  • Does she understand that the role of a judge is limited?
  • Will she reject results-based decisions?

Who is Ketanji Brown Jackson?

Jackson was born in Washington, DC, but grew up in Miami. She 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 an amicus curiae (friend of the court) brief on behalf of several pro-abortion groups advocating 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 Inmate Treatment Act was not an adequate substitute for federal habeas corpus (a position the Supreme Court ultimately adopted) .

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

The Senate unanimously approved Jackson’s 2005 appointment to the US Sentencing Commission, where she had previously served as Deputy Special Counsel, and her 2013 appointment by President Barack Obama to the US District Court.

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

What is Jackson’s criminal record?

While on the bench, Jackson offered opinions that should trouble Republicans on the Senate Judiciary Committee.

In 2019, in Committee on the Judiciary v. McGahn, Jackson denied a request for executive privilege and said former White House attorney Don McGahn should testify before the House Judiciary Committee, saying, “Put simply, the main takeaway from 250 years of American recorded history is that presidents are not kings. His decision was finally confirmed by the DC circuit sitting en banc.

Also in 2019, in Make the Road NY v. McAleenan, Jackson granted an injunction in favor of immigration advocacy groups challenging the Department of Homeland Security’s designation of aliens for expedited removal. She was overturned by the DC Circuit, which held that the DHS secretary had “single, unreviewed discretion” to make such decisions.

In 2019, in Brown v. Government of the District of Columbia, Jackson denied a motion to dismiss a First Amendment challenge to DC’s begging control law. The five plaintiffs were arrested for violating this law, which defines begging as asking, begging or soliciting alms by word, writing or print. Jackson concluded that their complaint “plausibly alleges a viable First Amendment claim,” primarily by alleging that begging constitutes expressive conduct.

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

After joining the DC Circuit, Jackson signed an opinion upholding a lower court ruling rejecting former President Donald Trump’s efforts to block the release of documents held by the National Archives to the House of Commons Jan. 6 committee. representatives. The Supreme Court declined to intervene, with only Justice Clarence Thomas dissenting.

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

What is Jackson’s judicial philosophy?

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

Last year, she told the Senate Judiciary Committee that she had no “judicial philosophy per se” but was bound, as a lower court judge, by the Court’s precedent. supreme.

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

Of course, it is individual judges, not the High Court as a whole, who adopt whatever “methodology” they deem most appropriate when it comes to interpreting the Constitution. Additionally, she will be freed from any restraints 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 his judicial philosophy.

While there may not be much to say directly about her yet at this point, we know what the Biden administration and its political allies want from their appointed judges.

They have firmly adopted an explicitly political vision of the judiciary and the judges who sit there. They use clichés 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 produce results that favor certain groups and serve certain groups. interests.

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

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

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

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

Additionally, 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 Since empathy is defined as a person’s ability to share what another person is feeling from the other person’s point of reference, empathy should not play a role in the examination of a case by a judge.

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

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

These are radically different paths to justice, but only one is consistent with our freedom.

Who are Jackson’s supporters?

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

If that’s a legitimate argument, then it should apply to Biden’s nominee as well. Jackson was recommended for nomination by Demand Justice, which advocates for an overtly political justice system and helped lead the charge for court packaging. He also wants to abolish the legislative filibuster and called Trump’s appointments of Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett “illegitimate”.

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

The network of so-called black money groups becomes even more complicated. As Politico reported, Jackson “enlisted Robert Raben…to help him deal with the deluge of scrutiny from the press.” A director of Raben’s public affairs firm, Jeremy Paris, was chief nominating counsel for Sen. Patrick Leahy, D-Vt., and is executive director of the Committee for Fair Justice, another defender of justices who would defend liberal causes.

Sitting on that group’s board is Chris Kang, who has advised the Obama administration on judicial appointments and is…wait…chief counsel for Demand Justice.

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

A news report described the letter as “errorlessly designed to spur Jackson…into the home stretch before a decision.” That alone should give Republican senators pause.

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

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