Federal Courts and Nominations

After hearings, experts debate how Ketanji Brown Jackson would interpret the Constitution

WASHINGTON – After four days of heated and at times emotional hearings to consider Judge Ketanji Brown Jackson’s nomination to the Supreme Court, a fundamental question remained notably open to debate: What kind of justice would she be?

Simmering just under the surface of headline-grabbing exchanges about abortion, child pornography sentencing and court-packing, some details about her approach to interpreting the Constitution became clear – though conservatives argue the way Jackson defined her approach to deciding cases during the hearings left lots of room to wiggle.

“I have developed a methodology that I use in order to ensure that I am ruling impartially,” Jackson told the Senate Judiciary Committee. “I am acutely aware that as a judge in our system I have limited power.”

Democrats are moving quickly to confirm Jackson as the first Black woman to ever sit on the nation’s highest court. Chairman Dick Durbin, D-Ill., said the committee would likely vote on her confirmation in early April. Pending an unforeseen development, that would queue up a final Senate vote before Easter.

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Though legal experts debate the usefulness of labeling judges, conservatives tend to be drawn to the notion of originalism, interpreting the Constitution with an eye toward what the words meant to the framers. Liberals tend to focus on the idea of pragmatism, which takes into account other factors, such as the “reasonableness” of a decision.

Jackson, who currently sits on the U.S. Court of Appeals for the D.C. Circuit, seemed to steer a course between those two schools of thought, declining to be pinned down to either of them. In a sense, Jackson’s response mimicked the umpire analogy Chief Justice John Roberts used during his 2005 confirmation hearings in which he said his job would be to “call balls and strikes, and not to pitch or bat.”

Jackson said the high court looks to the text of the Constitution “as originally intended” but applies “those principles to modern day.” She repeatedly committed to “stay in my lane,” referencing the idea that judges are supposed to avoid making policy.

Those principles gave some cheer throughout the week to Republicans on the committee, who have been the most vocal in criticizing the idea of an “activist” judge. But others said Jackson declined to settle on a specific approach to interpreting the Constitution. And while that may seem like a technical legal matter, it could prove pivotal to how she would decide cases dealing with abortion, guns and LGBTQ rights.

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“We didn’t get a lot. We got some fairly general statements suggesting concern for text and for original meaning,” said Jonathan Adler, a professor at Case Western Reserve School of Law. “I do think it is fair to note that Republican administrations more than Democratic administrations have prioritized judicial philosophy and have tended to nominate people who have more clearly defined…judicial philosophies.”

Carrie Severino, president of the conservative Judicial Crisis Network, said Jackson was “all over the place on the question because she was trying to be all things to all people.”

It’s an issue Republicans focused on last year when Jackson was before the same committee for her current spot on the D.C. Circuit. Her vague answer to a question from Sen. Ted Cruz, R-Texas, about whether she embraces the theory of a “living Constitution” was the reason most GOP senators cited for opposing her at that time.

“What the American people want to see is not a judge who’s going to be a rubber stamp on the policies (of the administration) but a judge who looks to the text and the original meaning” of federal laws and the Constitution, Severino said.

But others pushed back on the idea that Jackson was vague on her approach just because she wouldn’t declare herself an “originalist.” That’s largely because “the labels give a false sense of clarity,” argued Elizabeth Wydra, president of the liberal Constitutional Accountability Center, which is supporting Jackson’s confirmation.

“I think conservatives are a little scared of that because they’re used to being able to convince the public that the words lead to this conservative narrative that they’ve placed on them, which is not actually what the Constitution stands for,” Wydra said.

“What’s even more useful than putting some label on her judicial philosophy,” Wydra said, “is the fact that she actually described the process.”

So how did Jackson describe her “methodology” for deciding cases? She said the first step is to clear her mind of “any preconceived notions.” Then, she said, she’s ready to hear the legal arguments and consider the facts in a case. Finally, she makes a decision that takes into account the text of the law and “trying to figure out what those words mean as they were intended by the people who wrote them.”

Sometimes, she said, that’s enough to resolve the issue. Sometimes, she said, judges also consider “history and practice” and what Congress may have intended.

In some ways, experts on both sides of the issue said, the debate can be academic. No one thinks Jackson will upset the conservatives’ 6-3 advantage on the Supreme Court. No one believes that she will regularly side with the court’s conservative wing in major cases involving political power or culture war issues, experts said.

“No one believes that her approach to judicial interpretation is the same as Justice (Amy Coney) Barrett or Justice (Neil) Gorsuch,” Adler said, calling attention to two conservative members of the Supreme Court who emphasize focusing on the text of a law.

“What we see from her as a judge,” Adler said of Jackson, “is a willingness to bring other things into the stew.”

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