Who Really is Ketanji Brown Jackson?

Whitehouse.gov

Below is my column in the Hill on the nomination of Judge Ketanji Brown Jackson. What is most notable of the statements of support for Judge Jackson is how little is said about her judicial philosophy or approach to the law. The fact is that we have a comparably thin record of opinions in comparison to recent nominees. While she obviously has opinions as a district court judge, there are few opinions that shed light on her judicial philosophy. That is not surprising for a trial judge who issues hundreds of insular decisions on trial issues or outcomes. This is not about the years of experience on the bench, which I have repeatedly noted is a great strength in the nomination. It simply means that we have fewer opinions offering substantive insights into her approach to legal interpretation. The question is whether we will learn substantially more in this confirmation.

Here is the column:

For many liberal groups, Judge 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 unnecessaryunprecedented 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 shedding light on her approach to legal interpretation.

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 establishing their judicial philosophy. 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.

177 thoughts on “Who Really is Ketanji Brown Jackson?”

    1. Young, the truth doesn’t matter to Biden. Even his State of the Union was mostly mistruths. It was built based on poll numbers representing what people wanted to hear. The reality is quite different, but has the press tried to count the number of mistruths? Of course not. He relied on Ukraine occupying soft minds even though Biden is one of the major causes of that war.

  1. Has anyone considered the possibility that a Biden nomination will be confirmed and then Justice Breyer will say “Just kidding. Not retiring! 😉”, and then, once the confirmed Biden nominee has been sworn in, there will be 10 “packed” justices on the court? We are putting a lot of trust in Justice Breyer…

  2. 9 Of Trump’s Federal Court Nominees Were Rated ‘Unqualified’ By ABA

    Critics didn’t wait to find out which Black woman Biden would name; they attacked the idea that any Black woman was qualified for the job.

    Take Louisiana Sen. John F. Kennedy, who suggested that Biden’s nominee would not know the difference between a J.CREW catalogue and a law book.

    Or Senate Minority Leader Mitch McConnell of Kentucky, who when asked about diversity on his staff, responded, “I don’t know if any black women work for my office.”

    Let’s not forget Sen. Ted Cruz (Tex.) who argued that Biden’s pledge to nominate a Black woman was offensive to a majority of Americans and perhaps.

    Worst of all was Mississippi Sen. Roger Wicker, who said, “The irony is that the Supreme Court is at the very same time hearing cases about this sort of affirmative racial discrimination while adding someone who is the beneficiary of this sort of quota.”

    Let’s put this into context: Donald Trump was the first Republican president since Nixon not to put a Black jurist on the U.S. Court of Appeals. Trump and his Republican Senate allies placed over 200 judges on the bench in four years, including three on the Supreme Court.

    Trump’s judges were overwhelmingly White, male and conservative. Nine of them were rated as “unqualified” by the American Bar Association. But that did not matter to Trump and McConnell.

    https://www.washingtonpost.com/nation/2022/02/28/republicans-criticism-ketanji-brown-jackson-is-part-reason-black-women-like-me-left-party/

    ……………………………………………………………………………………………………

    The first sentence from above applies to Johnathan Turley:

    “Critics didn’t wait to find out which Black woman Biden would name; they attacked the idea that any Black woman was qualified for the job”.

    1. “[T]hey attacked the idea that” one should choose a Supreme Court nominee on the basis of race and gender.

      Now that statement is accurate.

      And they attacked this particular nominee because she is a political shill, not a jurist who grasps the purpose of the constitution.

      1. Amen.

        A typical leftist distortion. Similar to what we heard over and over again when the Left referred to Trump as “anti immigrant”….no, he was anti ILLEGAL immigrant.

    2. Actually any Dem or Progressive is unqualified to support the US Constitution so they are ineligible on that basis. No commie judges please.

  3. Biden’s idiocy is contagious. Now NASA has chucked meritocracy out the window in favor of wokism.

    We keep playing with the players that cant make varsity team, we’ll never advance the space program. However it is one step up from Obama. His new NASA administrator said his priority was Muslim outreach.

    However, NASA made a pledge in April 2021 that it would put a woman and a person of color on the Moon, a promise in line with US President Joe Biden’s aims of advancing equality.

    https://www.msn.com/en-us/news/technology/jewish-american-astronaut-jessica-meir-may-be-first-woman-on-the-moon/ar-AASU0c2

    1. “However, NASA made a pledge in April 2021 that it would put a woman and a person of color on the Moon, a promise in line with US President Joe Biden’s aims of advancing equality.”

      Let it be Maxine Waters… one way.

  4. Progressives everywhere are congratulating Joe ‘would you trust me to drive your car’ Biden for leaving no stone unturned in his quest to find the best black lady for the job.

    Mr. Biden, if you still have the capacity for sentient thought, please reflect on the awful thing you’ve done to Ketanji Brown Jackson. Jackson’s lifetime tenure will be forever diminished by the knowledge that you refused to consider a multitude of other qualified candidates because of their race and sex. By the knowledge that Ms. Jackson was picked as a political prop for the Democrats ahead of the 2022 midterm elections. By the knowledge that she can be counted on to deliver the goods for her progressive sponsors, who will vote as an ideological monolith for her confirmation.

    Jackson knows it. Her soon to be colleagues on the Court know it. Everybody in America knows it. It’s horrifying. Mr. Biden has done a grievous disservice to Ms. Jackson. To the Supreme Court. And to the American people.

      1. Are we sure it isn’t our first gay President with a new identity?

        Anything seems possible these days.

        I have trouble telling the difference between Babylon Bee headlines and the so-called real headlines.

        Sometimes they are the same but the Bee gets there first.

  5. This just afirms under Joey biden that affirmative action litmus testing is alive and well….and in fact a religion the leftist pillar.

    1. How do you explain one of the pre-eminent conservative jurists of his generation who praises Jackson as “eminently qualified to serve on the Supreme Court of the United States”?

  6. In answer to Turley’s question:

    “Who really is Ketanji Brown Jackson,”

    Judge J. Michael Luttig, considered a luminary in conservative legal circles, states:

    “she is as highly credentialed and experienced in the law as any nominee in history, having graduated from the Harvard Law School with honors, clerked at the Supreme Court, and served as a Federal Judge for almost a decade.”

    As to Biden’s campaign promise that he would nominate the court’s first Black woman, Luttig expressed his support saying that Republicans had been wrong to criticize the pledge:

    “The President knew at the time that there were any number of highly qualified black women on the lower federal courts from among whom he could choose — including Judge Jackson — and Republicans should have known that the President would nominate one of those supremely qualified black women to succeed Justice Breyer.”

    https://www.cnn.com/2022/02/28/politics/jackson-luttig-endorsement/index.html

    Whatever sway Turley’s liberal opinion may have over Trumpists and Republicans, it is no match to that of Judge Luttig’s opinion whose conservative credentials are unimpeachable.

      1. That’s Trumpism- purely transactional- you can flirt with white nationalists as does Green and Gosar, but as long as you will parrot the Big Lie, and support Trump, you are welcome.

        1. So evidence you are afraid to look at is a “Big Lie”. As opposed to what ran on the front page of the NY Times for several years while the cheerleaders at all the “news” networks slavishly repeated it. HereIsTheEvidence web site has some things. So do numerous sites showing the box stuffers in Georgia, the cheaters right on video in Delaware County PA. No blue county is secure because no local officials there have any integrity.

          I don’t think it will happen but it would be great if one of the Senators asked her what she thinks about Voter ID. Like even Mexico has.

          Anyone who likes a little historical perspective should read “The Gray Lady Winked” about the NY Times history of what is arguably criminal behavior. It fronted for both Hitler and Stalin among other things.

          1. MrTea,

            You must be new around here; otherwise, you would know that I reject your lies. I am implacably opposed to Trumpism. I stand with NeverTrumper Turley who also does not buy the Big Lie. You are wasting your breath.

            1. You’re disingenuous. The “Big Lie” as you call it refers to things Lin Wood said. You’ve been told hundreds of times to disregard that and focus on the points made by the rest of us over and over and over again, which demonstrate extraordinary cheating by the Democrats.

                1. You’re shameless. Barr is irrelevant, and he is talking about Lin Wood’s claims, not the iron-clad facts about the illegalities in PA, WI, MI, and Georgia.

                  1. Turley and Barr are long-standing friends by his own admission. I’m sure that Turley will defend Barr’s categorical statement in his forthcoming book:

                    “He stopped listening to his advisers, became manic and unreasonable, and was off the rails…. He surrounded himself with sycophants, including many whack jobs from outside the government, who fed him a steady diet of comforting but unsupported conspiracy theories.”

                    How many conservatives and Republicans will you lying Trumpists have to besmirch to defend this “carnival snake charmer” as Turley described Trump?

                    1. “How many conservatives and Republicans will you lying Trumpists have to besmirch to defend this “carnival snake charmer” as Turley described Trump?”

                      Maybe a couple of Rino’s and most Democrats. Snake charmers calm the snake. Biden did a lousy job calming Putin, The Taliban, Hamas and soon China. Trump kept the peace.

                      Silber, I think Trump’s snake charming killed your brain or were you born this way?

                2. “Justice found nothing ”

                  Silber, are you intellectually challenge? Justice also found nothing to convict Al Capone of murder or criminal activity other than tax evasion. Are you a lawyer or a paralegal?

          1. Hi Tim,

            Nice to make your acquaintance. You are going to fit in here quite well. Good luck

        2. White nationalists are the ultimate anti-racists. You have to be a seriously malignant racist to object to white nationalism.

            1. Is black nationalism racist? Are campus events for blacks racist? Is the Black Caucus racist? If Congress had a White Caucus, would that be racist? Is forcing someone to say he is privileged because he is white racist? Is forcing a millionaire black to say he is privileged, racist?

      2. That’s stupid. No one values the opinions of people whose opinions are based on entirely different values

    1. The point is that Judge Jackson has precious legal opinions and writing on which to answer the question. It is nice and encouraging that Judge Luttig endorses her nomination. But he is one voice, one opinion. Is that all we need? All SCOTUS nominations must pass the Judge Luttig litmus test…only…? That’s not how it works and you know it.

      1. I agree. But his opinion is more prominent than Turley’s, and I felt it important to note it here.

    2. Will President Biden’s campaign promise and follow through to select a BLACK WOMAN to the SCOTUS set a precedence? Will future SCOTUS nominees be be selected for their race and gender? What if a future President announces h= will nominate a WHITE MAN to the SCOTUS, other than choosing the BEST person available for the position, regardless of race, gender or even political philosophy?

      Judge Jackson is an Ultra-Leftist, who would be PERFECT for conducting show trials for Hitler or Stalin! But for a SCOTUS Justice? I hav my doubts, but it matters not. Judge Jackson WILL be confirmed and will join the Court. Is she the BEST for the position? I doubt it, but once again, radical Ideology prevails in our country. Future Justice Jackson will have about 30 years to do harm to our nation’s judicial system…long after “Dementia Joe” BRANDON is pushing up daisy’s!

      1. Armyaviator says:

        “Judge Jackson is an Ultra-Leftist, who would be PERFECT for conducting show trials for Hitler or Stalin!”

        Yours is a disgusting remark. I have no doubt that Turley would deplore it if it was brought to his attention. I’ll trust Judge Luttig’s opinion:

        “The President knew at the time that there were any number of highly qualified black women on the lower federal courts from among whom he could choose — including Judge Jackson — and Republicans should have known that the President would nominate one of those supremely qualified black women to succeed Justice Breyer.”

        https://www.cnn.com/2022/02/28/politics/jackson-luttig-endorsement/index.html

        1. Luttig is a left-winger. His “opinion” (almost certainly insincere) doesn’t help your case.

            1. What is wrong with you? Why would I care about Turley’s opinion of Luttig when I can form my own?

                1. Silbe, that is a lie, You have no respect for Turley and probably don’t even respect yourself. At least that is what your responses indicate.

            2. “I’ll stand with NeverTrumper Turley. “

              How can Silber stand withTurley? Silber is more than 5 feet shorter and has four legs.

    3. Didn’t you read the article? Very little evidence on how she interprets, and a few decisions overturned for “over reach”

      1. How do you explain one of the pre-eminent conservative jurists of his generation who praises Jackson as “eminently qualified to serve on the Supreme Court of the United States”?

      2. It is the core of the issue as you note. Not only is she a judicial lightweight ..it’s quite obvious she is partisan to an extreme. The abject failure of progressive leftism in our current admin and in our government in general says it all. She is of the same tainted stripe…and not what american people need. Why do demorats prop up such intellectual lightweights …why ?. It’s obvious if you have your eyes and minds open.

    4. Luttig is bright but he is far from unimpeachable. He has written on a number legal questions where is viww is far from a conservative / originalist interpretation.

      1. Paul,

        From what I gather, Luttig is the gold standard of conservative jurisprudence. He knows Jackson far better than you and I, and if he sings her praises despite her liberal jurisprudence, then who are we to argue with his considered opinion. Turley raised the question; Luttig answered it.

        Whenever Turley legitimately questions or politely chides the MSM or the Democrats, it never ceases to amaze me the torrent of hatred vomited by his followers. Sure, I criticize Turley for hypocritically selling out to Fox, but I constantly disabuse the Trumpists here who presume that he shares their vitriol of Leftists, Progressives or Democrats. He never expresses the sort of vile sentiments often posted here. I have no doubt whatsoever that he would be aghast to read many of views expressed by his contributors.

        I’m just glad I’m not like them, present company excepted.

        1. Luttig is a Never Trumper and resigned as a judge about 15 years ago to take a job with Boeing being paid in the millions. Who is he today and who was he yesterday? Silverman doesn’t have the slightest idea. Silverman isn’t very bright so he spends is time looking for those that can offer him confirmation bias.

    5. No one gives a ratsass what Luttig says. Finding one conservative who agrees with your point does not mean it’s the end of discussion. Her evasiveness on answering questions is a gigantic red flag.

      1. Paco,

        Speak for yourself. I’m sure Turley has the highest respect for Luttig’s unqualified endorsement of Jackson.

      1. Lovely William. Is “a**hole” a legal term of art you learned in law school? I wonder what *good speech* Turley would say to inoculate your vulgar epithet. It is no surprise you don’t use your full name on this forum.

        1. Your claim that he is a pre-eminent conservative is stupid. He’s a left-winger. Is that better? His “opinion” is no more valuable than Biden’s or Kamala’s or Tribe’s.

    1. Her lack of work as an appellate judge suggest that she is better suited for a job at the Post Office not the Supreme Court.

      1. Steve Vladeck (UT Austin Law prof): “Judge Jackson has 8.9 years of prior judicial experience. That’s more than four current Justices (Thomas, Roberts, Kagan, & Barrett) had *combined.* It’s also more than 4 of the last 10 Justices had at their confirmations; 9 of the last 17; and 43 of the 58 appointed since 1900: https://t.co/oihmoErCoz” (data appended).

        Did you say the same about conservative nominees who lacked significant appellate experience?

        1. Did you say the same about conservative nominees who lacked significant appellate experience?
          A SCOTUS Judge doesn’t even have to attend law school

        2. Appellate experience is 100% worthless.

          Relevant qualifications:
          1. Independent thinking.
          2. Impartiality (commitment to the rule of law)
          3. Intelligence

          11. Trying cases as a lawyer

          18. Judging cases as a judge in trial court.

  7. I remember when the left used to nominate truly potent figures in the law, rather than third-rate sycophants who have no track record at all. Sad, but Jackson will very much likely be more like Sotomayor (or an Alito of the Left) than Brandeis or Marshall (or even Kagan, who has turned out to be a pleasant surprise). That is, an activist hack who will do whatever the Far Left wants to do, with no regard for Constitutional constraints. I was very disappointed not to see Childs nominated, as she is a far superior legal intellect than Jackson.

  8. Jonathan: Just one last word on the Jackson nomination. It seems your crusade against the nomination of Judge Jackson has brought out and emboldened the racists in your crowd of supporters. “Young” says that “nobody can trust a ‘sterling academic’ resume of a black person”. See what I mean? It’s a sad day when racists can find a comfortable home here in your comment section. I would think long and hard about how your column has encouraged some to think you are on their side. I hope I am mistaken. But “Young” is probably just jealous. With his probable “white privilege” he just can’t imagine that a Black person could have a better resume than his.

    1. Yes here we are, let us not call her out for being unqualified, but because of racist. By the way because of biden’s racism he selected this person solely because of her race. Sad days.

      1. He put a woman in charge of Civil Rights at the DOJ who says white people have calcified pineal glands and thus are less spiritual than blacks. The Harvard Crimson had the intergrity to maintain the web archive of the Kristen Clarke controversy (highly unusual for any newspaper these days) readers may review the evidence there. The DOJ is a goner, it’s only a matter of time before they go along with some kind or martial law dressed up in civil rights drag. I don’t think they are going to let the elections go ahead if they can’t fix them (that’s what the Open Border is all about).

    2. nobody can trust a ‘sterling academic’ resume of a black person”

      That’s a straightforward fact, and it’s offensive and racist for you to tell white people that we can’t speak the truth in our own interest.

  9. I wonder what price $$$ KBJ would bring at the Libyan Slave Auction today, the Slave Market Obama, Biden, Clintons’ , the Dims & the Rino’s built?

    Only the Pedos running the US govt today know, the same one’s currently “”Helping the Orphans”” in Ukraine right now.

    1. The “not in the news” stuff about biowar labs in Ukraine are way worse than even that. A website called Dilyana dot org has what are claimed to be documents purged from the US embassy website as the invasion began. Stiegel on substack has a great deal of material that never appeared on any cable news, PBS, BBC, etc. The infowar about the origin of the Wuhan is just the surface level.

  10. “Who Really is Ketanji Brown Jackson?”

    Answer: A lesser qualified candidate from a smaller pool of lesser qualified candidates. A false construct. A parasitic beneficiary of wholly unconstitutional quotas, generational welfare, matriculation affirmative action, grade-inflation affirmative action, employment affirmative action, political appointment affirmative action, forced busing, public housing, food stamps, WIC, SNAP, TANF, HAMP, HARP, HUD, HHS, Obamacare, unfair “Fair Housing” laws, discriminatory “Non-Discrimination” laws, etc., etc., etc.,…

    not to put too fine a point on it.

    Upon the issuance of the Emancipation Proclamation in 1863, the Naturalization Act of 1802 was in full force and effect requiring citizens to be “…free white person(s)…,” and requiring the compassionate repatriation of black freed slaves (for their own benefit, for their own self-esteem and sense of nationhood).
    ____________________________________________________________________________________

    The Israelite slaves were out of Egypt before the ink was dry on their release papers, but then they possessed the ambition, capacity, acumen and gumption sufficient to the task.
    ___________________________________________________________________________________________________________________________________________

    “I’m so happy to be back!”

    – Jaycee Lee Dugard, Abductee For 18 Years
    ____________________________________

    What type of abductee does not want, simply and singularly, to go home?
    _________________________________________________________

    The truly suffering Ukrainians are not begging for alms from anyone, they are attempting to save and build their own country right now.

    Blood, sweat and tears.

    Life is a worthwhile struggle…for some.

      1. Who is anonymous ?……. a parasitic leftist demanding affirmative action sub par quality for the sake of equity alone . Gee that sounds like a racist sexist xenophobic incel racist right there. Change my mind.

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