On Thursday, the Senate Judiciary Committee wrapped up its hearings for Judge Ketanji Brown Jackson, hearing from legal experts and others about Jackson’s experience and suitability for the job.
Durbin Opens With Broadside Against GOP Questioning
Judiciary Chairman Dick Durbin (D-Ill.) opened the fourth day with a critique of the GOP line of questioning over the past three days, which he said was “beneath the dignity” of the Senate.Republicans have pushed Jackson hard for her record on sentencing child porn offenders, have alleged that she is “soft-on-crime,” and have probed deep into what her judicial ideology will be if she makes it to the Supreme Court.
“The last three days have been long, exhausting for senators, and ... much more so for Judge Jackson,” Durbin said at the opening of the Thursday hearing. “I believe that she carried herself with grace, humility, and dignity, was thoughtful and forthright in her responses.”
“Some of the attacks on this judge were unfair, unrelenting and beneath the dignity of the United States Senate,” Durbin said. “You can disagree with the senators vote. You can disagree with a judge’s ruling. But to draw conclusions that really reflect on them personally and their values and take it to the extreme is unfair whether the nominee is Democrat or Republican.”
In the days prior, Republicans on several occasions referenced the hearings of Justice Brett Kavanaugh, whose hearings were rife with personal attacks after Kavanaugh was accused by a California professor of having raped her in the 1980s.
Though the evidence for the charge was thin, Democrats accepted the accusation wholeheartedly and spent Kavanaugh’s hearing attacking his character on the basis of the charge.
Still, Durbin said that he was “saddened” by the treatment that Jackson had received.
Members of American Bar Association Praise Jackson as ‘Well-Qualified’
On Thursday, the Judiciary Committee heard from several members of the American Bar Association (ABA), which rates potential federal court picks.Jackson, like the GOP-nominated Justice Amy Coney Barrett, received a rating of “well-qualified” from the ABA, a rating which the ABA explained in an appearance before the Senate committee.
Across interviews with over 250 judges, lawyers, and legal scholars, the ABA heard “uniform praise,” said retired Judge Ann Clair Williams, chairwoman of the ABA federal judiciary committee.
Williams said that those interviewed described Jackson as “brilliant, beyond reproach, first rate, patient, insightful, impeccable.”
Responding to GOP arguments that Jackson had been too soft on those caught in possession of child porn, Joseph Drayton of the ABA said, “None of them felt that she demonstrated bias in any way,” calling Jackson “fair to all sides” and describing her as showing the “highest level of competence.”
“Given the uniform strength of these and many other comments, the standing committee readily concluded that Judge Jackson demonstrates the exceptional professional competence expected of a Supreme Court justice and thus merits a well qualified rating,” said D. Jean Veta, another member of the ABA federal judiciary committee.
Others Warn That Jackson Would Be Dangerous On SCOTUS
While Jackson had several defenders, several other witnesses warned that her track record on crime, abortion, critical race theory, and other issues would make her a poor candidate for the Supreme Court.Over the past few years, crime rates across the United States have increased at a rapid trot, with many cities seeing record-breaking levels of violent crime in 2021.
Alabama Attorney General Steve Marshall warned that the trend would only continue if Jackson was confirmed, and said that the Senate should do all it can to prevent that.
“The Senate must now do its due diligence to ensure that the ideology of the anti-incarceration and anti-police movement, views the Biden administration seemingly has increasingly embraced, is never permitted to make its way onto our Supreme Court,” Marshall said.
Eleanor McCullen, an anti-abortion advocate, said that she was hurt by Jackson’s opinion in a past amicus brief in which Jackson argued to uphold a law preventing anti-abortion advocates—which McCullen described as “sidewalk counselors”—from standing closer than 35 feet to abortion clinics.
Jackson “maligned pro-life counselors, characterizing us in ugly and false ways,” McCullen said.
Ultimately, courts ruled that the Massachusetts “buffer zone law” violated the first amendment, overturning the law which Jackson had defended.
Keisha Russell, a constitutional lawyer at the conservative-leaning First Liberty Institute, warned against Jackson’s confirmation on grounds of critical race theory (CRT).
Since the beginning of critical theory, Russell said, it has “rejected the enlightenment and the age of reason, on which the American republic was founded.”
The principles of critical theory, which Russell said works on the assumption that some people are oppressed and others are oppressors, were also the founding spring for communism and nazism, Russell said.
CRT, which is derived from critical theory more broadly, assumes that “racism is a systemic and structural force” rather than the result of individual intentions or motives, Russell continued.
Jackson’s past statements and arguments, Russell argued, show that Jackson embraces CRT, and Russell warned that these views could affect her decision making and “create injustices.”
Jackson ‘May Have Different View’ Than Traditional Originalism: Kavanaugh Law Clerk
Throughout the hearing, Jackson also received criticism for her lack of a dedicated judicial philosophy.Generally, conservative justices err towards originalism—the notion that the Constitution should be understood as the Founders understood it—or textualism, which calls for a very strict, close reading of the text of the Constitution itself.
Liberal justices generally trend toward the notion of a “living Constitution,” which calls for a far less strict interpretation of the Constitution in accordance with the issues of the time.
Jackson seemed to go for none of these options, saying rather that her judicial decisions would be very case-by-case.
Jackson said that if confirmed to the Supreme Court, she would “stay in [her] lane” while “interpreting the law.” She also said she would “[rule] consistent with Article III” of the Constitution, which delineates the powers of the federal judiciary.
Jackson said on March 22 that she was “acutely aware that, as a judge in our system, I have limited power, and I am trying in every case to stay in my lane.”
While these broad expressions were largely in line with the view of the Constitution espoused by more conservative judicial philosophies, administrative law professor Jennifer Mascott, a former law clerk for Brett Kavanaugh, said in her testimony that while Jackson “has a wealth of experience” and is “well-respected,” she “may have a different view than traditionally applied methods of originalism.”
