Below is my column in the Hill on the confirmation hearings that start today for Judge Ketanji Brown Jackson. The question is whether there will be a substantive discussion of Jackson’s approach to judicial interpretation and judicial ethics.
Here is the column:
Pablo Picasso once said, “Learn the rules like a pro, so you can break them like an artist.” Under this standard, the Supreme Court confirmation hearing for Judge Ketanji Brown Jackson could prove to be a masterpiece.
It may depend on the application of two rival rules or models for such hearings. Notably, both were crafted by Democrats, during the 1993 confirmation of Ruth Bader Ginsburg, then, during the 2020 confirmation of her replacement, Amy Coney Barrett.
During Ginsburg’s confirmation, then-Judiciary Committee chairman Joe Biden told her that a confirmation is where a nominee is expected to “answer questions or to discuss your judicial philosophy.” He later expressed concern over how Ginsburg, “at least from my perspective, appeared to be reticent to answer some of our questions even more so than recent nominees.”
Nevertheless, in her confirmation, Ginsburg declared that she refused to answer questions on her position on particular issues. “I’m not going to give an advisory opinion on any specific scenario,” she explained, “because as clear as it may seem to you, I think I have to avoid responding to hypotheticals because they may prove not to be so hypothetical.”
What became known as the Ginsburg Rule meant that nominees could refuse to answer questions on how they interpret the Constitution on issues like abortion. The rule has been given broader and broader meaning with each confirmation.
I have been a critic of the rule as reducing confirmations to largely contentless staged events where nominees avoid legitimate questions on their interpretative approaches in any given area. Ironically, Ginsburg became known for publicly discussing issues related to pending cases or political questions after she was confirmed.
In 2020, Senate Democrats seemed to abandon that rule and demanded that Amy Coney Barrett confirm her likely vote on pending issues ranging from ObamaCare to abortion rights. Indeed, some senators said they would vote against her if she did not expressly confirm that she would vote to preserve the Affordable Care Act (ACA) and uphold Roe v. Wade. Barrett correctly refused to do so.
While I have been a critic of the Ginsburg Rule in barring discussion of judicial philosophy, it was a dangerous and outrageous demand by Democratic senators to confirm Barrett’s position on pending cases. They insisted Barrett was evasive and was being put on the Court to kill the ACA. It was an absurd claim. As I wrote at the time, the pending case was not a serious threat to the ACA and, if anything, Barrett was most likely to vote for its preservation — which she ultimately did. Nevertheless, Democrats surrounded Barrett with photos of the type of people who could die without the ACA, or with Barrett’s confirmation.
Now, it is a Democratic nominee, and it appears the Ginsburg Rule once again will reign supreme in her confirmation hearing. It may be expanded, too.
In the Barrett confirmation, Democratic senators pledged to vote against Barrett solely on her judicial philosophy. Now, however, Rep. Jim Clyburn (D-S.C.) has declared that, as the Court’s first female black nominee, Jackson’s confirmation is “beyond politics” and the vote is “about the country, our pursuit of a more perfect union.”
After Jackson’s nomination, I noted that, with only one appellate opinion, Judge Jackson’s judicial philosophy remained largely unknown. The reason is simple: Jackson has largely served on the trial level and, despite hundreds of decisions, trial judges are required to follow the precedent of the Supreme Court and their circuit court. Moreover, most trial decisions deal with insular rulings on evidence or outcomes at trial. While there are a couple of longer trial decisions, most of Jackson’s record does not clearly establish her interpretative approach to the Constitution or statutes.
That simple observation has met a torrent of objections. “Above the Law’s” senior editor, Joe Patrice, suggested my questioning of Jackson’s judicial philosophy was a racist dog whistle: “He’s just asking questions! He’d say the same thing about any nominee! It’s a lie, of course. He wouldn’t say this stuff about any nominee.”
On the contrary, I asked precisely that question about Court nominees Samuel Alito, John Roberts, Sonia Sotomayor, Elena Kagan, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. The difference is that some of them had appellate opinions or books illuminating their judicial philosophy. This is not a criticism of Jackson. Indeed, there is a general preference for nominees with lower profiles on interpretative issues — nominees without clear positions that can be attacked by the other party.
Yet this seems off-limits with Jackson. Even raising the lack of clarity on Jackson’s judicial philosophy was said by Patrice to be another “‘lesser Black women’ [attack] with a gentler touch. But the goal is the same.”
In her recent confirmation to the appellate court, Jackson repeatedly refused to discuss her judicial philosophy with senators and, curiously, suggested it would be somehow inappropriate for her to explain her view on constitutional interpretation as a lower court judge. Jackson may now use the Ginsburg Rule to refuse to explain her judicial philosophy beyond the most generalized terms.
She also may refuse to answer a critical ethical question: I previously wrote that Jackson should recuse herself from a Harvard case involving race criteria for admission because she serves on Harvard’s Board of Overseers, which describes itself as “critical to the governance of Harvard.” This is not, as Ginsburg said, a hypothetical that “may prove not to be so hypothetical.” It is a real conflict, and the facts are established. Even though Jackson will leave the board in May, before the case is argued before the Court, the underlying facts will not change.
Ethical issues have occasionally arisen in past nominations, like the unsuccessful confirmation of Abe Fortas as chief justice when retainer and speaking fees were raised. Unlike Fortas, Jackson is not accused of any wrongdoing; the issue is how she defines and addresses a conflict of interest.
Moreover, Jackson should be asked if she adheres to the current view of the justices that they are not controlled by the Code of Judicial Ethics. I have also long opposed that view as entirely unfounded.
The question is whether an ethical conflict on a pending case will be treated as falling within the Ginsburg Rule. A nominee could object that a guarantee to recuse could be viewed as a promise in exchange for confirmation. However, at a minimum, she should be able to address generally her interpretation of the ethics code with regard to board memberships and leadership positions.
Before we create a “Jackson Rule” on ethical issues, the Senate should consider the implications of further narrowing the range of permissible questions in confirmations.
There are many things I like about Judge Jackson, including her litigation experience, service as a public defender, and years on the trial court. She has an extraordinary background and a stellar reputation. I do not agree with critics that her alleged support for critical race theory or her praising of the controversial 1619 Project are barriers to being on the court.
One would think that a nominee’s approach to judicial interpretation and judicial ethics would be the most material questions for a senator in giving “advice and consent” on a new justice. Judge Jackson could greatly advance the confirmation process by simply answering these questions.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.
119 thoughts on “Will Senate Apply the Ginsburg or the Barrett Rule to Judge Jackson?”
She was selected based on her gender and skin color. Period.
Biden said as much when he said his nominee will be a black woman…before he nominated her.
She was not selected for her qualifications.
Yep, Biden clearly selected a random Black woman who isn’t qualified.
Oh wait, no, he selected a highly qualified judge who is also a Black woman.
She may have a lot of legal experience but what makes her “highly qualified” for the Supreme Court? She has just one appellate opinion to her name. Compare that to Barrett who had 89.
“She was selected based on her gender and skin color. Period.”
Turley completely disagrees with this Trumpist smear:
“There are many things I like about Judge Jackson, including her litigation experience, service as a public defender, and years on the trial court. She has an extraordinary background and a stellar reputation.”
Again, Turley is no Trumpist.
Even though Jeff doesn’t seem to realize, the discussion is about Judge Jackson, not Turley.
Jeff – did you read Turley’s blog post about Biden’s pledge being discriminatory?
Nothing Turley writes escapes my attention.
I was objecting to Cag’s implication that race and gender were the ONLY criteria upon which Biden selected her, for Trumpists believe that black female jurists are stereotypically inferior intellectually to white male jurists. Consequently, Jackson could have qualified as a SC justice ONLY on the basis of her skin and sex. Cag’s exclaiming “Period,” reinforced his belief that her brains had nothing to do with her ascension.
Turley absolutely rejects that prejudice.
Turley’s statement about Jackson does not support your claim that “Turley completely disagrees….” with the fact that “She was selected based on her gender and skin color.” Here’s what Turley said about Biden’s decision that he would only consider black female candidates. “What Biden was declaring, and what Sanders wisely avoided, would effectively constitute discrimination in admission to the Supreme Court. Indeed, the Supreme Court has declared that such race or gender conditions are strictly unconstitutional for admission to public colleges.”
However, Turley forthrightly conceded:
“There is no doubt here that identity politics played a role in some nominations, but presidents have at least maintained an *appearance* of their selections based purely on merit.” [my emphasis]
As I stated then and will repeat here, all Biden did wrong was state the quiet part out loud. Blame it on early onset dementia. Biden’s promise was not a crime, it was a blunder.
Turley didn’t concede anything. Since “…the Supreme Court has declared that such race or gender conditions are strictly unconstitutional for admission to public colleges.” thus he believes Biden’s race and gender conditions “effectively constitute discrimination in admission to the Supreme Court.”
Biden ripped a page out of Trump’s playbook and violated a presidential norm. Meh. Had Biden not said anything, we would not be having this discussion. As Turley admitted, presidents should keep up *appearances* is all.
Jeff, be careful. Like Turley, you are saying the quiet part out loud. Referring to our President as having ” early onset dementia” is going to get you in trouble with some of your Left leaning friends here. They won’t have the guts to call you out. But they are privately seething. Dementia Joe doesn’t even know who the ” First Lady” is. Thinks it is word salad Kamala. The good news is that Jackson is eminently more qualified to be a SC Justice than Kamala is to be V.P.
I said that “early onset dementia” remark just to humor the guy I was responding to. I don’t know if he is actually suffering from that disease. He might just be getting old like all of us! He definitely has aged, but I’m no doctor.
I doubt Leftists are in denial about Biden; certainly no more in denial than Trumpists who believe that Biden won the election fair and square!
I don’t understand your dim view of Harris. She is intelligent and not suffering any handicaps. If she made some faux pas internationally, are they worse than Trump’s?
Jeff, just the latest entry from Harris. ” Talking about the significance of the passage of time right? The significance of the passage of time. So when you think about it, there is a great significance in the passage of time in terms of what we need to do. There is such a great significance to the passage of time”.
Needed a certain amount of words for her high school essay? Book report without actually reading the book?
I realize your hope for her as she rose to political prominence in your neck of the woods. And because I try to stay away from ad hominem attacks, I will not go into her original benefactor. Let’s just say he very recently had a birthday.
Dementia Joe said that he would choose a woman as a V.P. Then shortly thereafter came out with the ” You ain’t Black” statement. Now had to make sure his V.P was a Woman of Color also. After Kamala basically calls him a racist on the debate stage. Checking boxes. Not one of which was qualifications.
I have not seen any evidence of her being outstandingly intelligent.
She is more unpopular than Joe. According to the L.A. Times, no right wing publication, she is at 39% Lower than Joe’s 41%. Both are significantly lower among independents.
And again, why weaken your argument with yet another ” What about Trump?
I have such contempt for politics and politicians of all stripes that I don’t vote. No one is worthy of my vote, and I won’t vote for the lesser of two evils. No politician from either party can affect my personal life or my lifestyle so I don’t really care who is elected. I am a mere spectator to the clown show of American politics.
I don’t proclaim that Biden or Harris are great and qualified leaders. I don’t sing their praises. I simply don’t accept the lies on the Right that they are evil incarnate. And I refuse to believe the lies of Trumpists and Fox News. Do those on the Left lie? Yes, but not nearly as much as those “people of faith” on the Right compared to those on the Left who subscribe to science and not mythical gods. Because if you can believe in omnipotent, omnipresent, omniscient all powerful gods, there is nothing you can’t swallow.
Paul, some of Biden’s misspeaking is associated with his stutter. A discussion from a speech pathologist: https://www.nyu.edu/about/news-publications/news/2019/october/why-is-vice-president-biden-s-stutter-being-ignored-.html Maybe he also has some cognitive decline, and I think it would be good to require that all politicians and judges over a given age who are still in office be checked by a neurologist, but I don’t assume that your diagnosis is correct.
He is definitely in cognitive decline. No I am not a doctor. But I am not an auto mechanic either but I know when I have a flat tire. I probably won’t live to be Joe’s age so it is not a criticism ,just an observation.
As far as his stutter, look back on his ” Don’t want my children to grow up in a racial jungle” speech in the Senate. Acknowledges that he is going over his allocated time. Not one stutter. Very few people loved to hear themselves talk as much as Joe. Now ” he will get in trouble” if he takes questions.
And I do have some personal experience with Demetia. Unfortunately my mother had it. I see similarities.
Again: I think it would be good to require that all politicians and judges over a given age who are still in office be checked by a neurologist.
As a young adult, I helped care for my grandfather before he died at age 96, so I also have personal experience with dementia.
As for “Not one stutter,” that only demonstrates how well he sometimes manages it. But he has a stutter, that’s not in question.
I totally agree with you as far as certain individuals being required to be checked out by medical professionals.
As I understand it losing train of thought, mercurial outbursts and such are more an indication of Dementia than stuttering. From what I understand stuttering is not an inability to formulate thoughts but rather a problem with speech.
To me Joe exhibits the former.
I guess you can say he is managing.
I don’t agree.
My mother had Dementia. She never stuttered.
Had a few classmates with a stuttering problem. But they were very able to articulate cogent points.It just took a while.
I think the stuttering explanation is a canard.
I am sorry. Not buying it.
I wasn’t suggesting that stuttering is a symptom of dementia!
I was pointing out the fact that Biden has had a stutter since he was a kid. He has been quite successful in controlling it (so successful that many people are unaware that he’s had a stutter since he was a kid — maybe you’re one of them), but for all people with stutters, the stutter contributes to verbal errors, even when the stutter is well-controlled.
“From what I understand stuttering is not an inability to formulate thoughts but rather a problem with speech.”
Right. However, a listener might listen to a verbal mistake caused by a stutter and interpret it as a difficulty with thought rather than speech. A controlled stutter doesn’t sound like what most people associate with a stutter.
Here’s what Biden may have sounded like as a kid, where it’s recognizable as a stutter (Biden still has a stutter. He controls it, so it doesn’t sound like this kid, but Biden’s stutter still affects his speech):
Only have the ” like” option to reply to your post of Mar. 22 1:02 PM.
I didn’t say that stuttering was a symptom of dementia either. I was merely stating that dementia and stuttering present different symptoms. Ok, maybe Joe has ” mastered” his stuttering problems. That does not preclude him from presenting symptoms of cognitive decline. Which I think are very apparent.
” Can’t answer questions or I will get in trouble”. With who? He is the most powerful person on the planet. Hid in his basement for virtually the whole campaign? I don’t buy the convenient Covid protocols excuse. Latest State of the Union address in modern times? Fewest press conferences of the last 4 Presidents? ( I don’t count taking single digit questions from pre approved ” journalists” after making a speech). They hide him at every opportunity.
He is in cognitive decline.
Maybe he has both ” mastered” his stuttering and is ALSO in cognitive decline?
Maybe there is an anecdotal test for this?
There have been only 6 Presidents that chose not to run for a 2nd term. Including Truman who would have been virtually in his 3rd term because FDR died after serving only 82 days of his 3rd term.
Biden will not run for a 2nd term. After getting the most votes in history.
One of the reasons, if not the most prominent reason, is not because he has a stuttering problem, he is in cognitive decline.
Thank you for the respectful discourse.
I have been tempted to interact with others on this blog but you and Jeff are the only two that I will interact with. Not because I agree with you two on many points of view, but because at least with me you are respectful. Some others on ” the other side” who shall remain nameless are just in need of anger management classes.
Paul, I think we agree that it would be good to require all politicians and judges over a given age who are still in office to be checked by a neurologist. That includes Biden.
Re: “I was merely stating that dementia and stuttering present different symptom,” did you read the article I cited in my 3/22 10:04 AM comment? The speech pathologist who wrote it discussed how some tactics to control stuttering sound more like cognitive decline than like what many of us associate with stuttering.
I much prefer good faith discussions and am glad that we’re able to have them.
Jonathan: It’s nice to know you don’t agree with those who think Judge Jackson’s views on CRT should bar her from serving on the SC. But many in the GOP think otherwise. The uproar over CRT in the states has now spilled over into the House of Representatives. HR 6434, sponsored by a Republican, calls for the Secretary of Interior to establish a “Japanese American WII History Network” related to the history of Japanese-Americans and their incarceration in internment camps during the war. Few would disagree this was a stain on the history of the country. The House Bill just passed with 406 yeas–and 16 Republicans opposed. Among the “neas” were the usual suspects like Marjorie Taylor Greene, Lauren Boebert, Mo Brooks, etc. GOP Rep. Bruce Westerman, on the other hand, acknowledged the importance of the Bill : “[It] will be an important tool to ensure that this history, no matter how painful it may be, is always remembered, and the important stories of interned Japanese-Americans are told with honor and respect”. Indeed. But there are a lot of conservatives and racists in some states who don’t want to be reminded of the “painful” things that happened in the past–like slavery and the racist treatment of Japanese-Americans. For them CRT is the 400 lb gorilla that is being pushed by the “radical left”, “Socialists” and “Communists” to subject white children to “indoctrination”. So they are systematically passing laws against the teaching of CRT in public schools– even though CRT is only taught at the university level–mostly in graduate studies.
In Wyoming GOP legislators tried to pass a bill “teaching of history must be neutral without judgment”. It’s hard to imagine being “neutral” when it comes to the history of slavery– or being judgment free regarding the relocation and decimation of Native Peoples in North America. How can you be “neutral” in describing the murder of 6 million Jews under the Nazis? As someone once said: “It’s hard to neutral on a speeding train”. But the Wyoming bill said: “…no one should feel discomfort or or distress” learning about the Holocaust. Fortunately, calmer heads prevailed in Wyoming and the GOP bill was defeated. But this temporary defeat has not stopped other states, like Alabama, Mississippi, Tennessee, Georgia and Texas from actually passing similar legislation.
In Democracies we don’t live in fear of criticism and debate about the past. We don’t become stronger by denying the facts about the past, by sanitizing it, but honestly confronting the “painful” parts of our history. But for racists everyone they prefer the traditional white version. At a rally last week Trump told his mostly white supporters they should be in deadly fear of CRT and be willing to die fighting against it: “Getting critical race theory out of our schools is not just a matter of values, it’s also a matter of national survival…If we allow the Marxists and Communists and Socialists to teach our children to hate America, there will be no one left to defend our flag or to protect our great country or its freedom”. Fire and brimstone that would turn Pat Robertson green with envy.
Trump wants us to live in fear of the “Communists” and “Socialists” who want to “poison” our innocent white youth. They are lurking in our public school classrooms thirsty to indoctrinate our children. Trump made clear what he will do if he becomes President again. Public school teachers will be told what they can and cannot teach and how they present it. Teachers will be told they cannot present any theories that tell students to “hate” America. That, of course, is not what teachers do as a matter of practice. They don’t tell students to “hate” America. But that didn’t stop Trump who is attacking our democratic independent education system. For him “free speech” ends at the classroom door. A subject you should be interested in but no doubt you will ignore because it doesn’t fit in to your crusade that only the “free speech” rights of conservative students and professors are under attack. Good luck with that one.
nice obfuscation, hahahahah, even gas lighting .
try again lefty
even though CRT is only taught at the university level–mostly in graduate studies.
“She was selected based on her gender and skin color. Period.”
Turley completely disagrees with this Trumpist smear:
“There are many things I like about Judge Jackson, including her litigation experience, service as a public defender, and years on the trial court. She has an extraordinary background and a stellar reputation.”
Again, Turley is no Trumpist.
We are a Constitutional Republic.
denny you are full of all the democrat propaganda arent you.
We’re both a representative democracy and a constitutional federal republic.
The claim that we’re not a democracy is an ignorant claim.
Trump wants us to live in fear of the “Communists” and “Socialists” who want to “poison” our innocent white youth”
^^^^another lie, this one DISGUSTING!!!
never said white youths you LIAR!!!!
HAHAHAHA, you’re a mental case denny.
not one thing you said is accurate.
wow, no wonder we have such division, people like you live in a false paradigm.
“I do not agree with critics that her alleged support for critical race theory or her praising of the controversial 1619 Project are barriers to being on the court.”
“With critics?” Um, that would constitute EVERY single Trumpist on this blog. Trumpists certainly believe that her progressive attitudes about CRT and 1619 ARE absolutely disqualifying! The fact that Turley openly opposes such Trumpist naysayers confirms my belief that he is a NeverTrumper, bless his heart.
Turley has had nothing but contempt for Trump long before he ran for president; you don’t dismiss Trump as “an absurd television reality star” if you think he has presidential mettle.
Turley is a Liberal Law Professor @ George Washington University Law School. He is a lefist that leans twards the center
GT — Try improving
“Turley is a Liberal Law Professor @ George Washington University Law School. He is a lefist that leans twards the center.”
True, but he does not lean beyond the center and clearly nowhere near as far as the Trumpist Rightwing fringe .
He maybe a Democrat, but he’s not a leftist.
Aren’t you the one who said “People should prove their real identity and not hide behind a fake name. Accountability for one’s statements would go a long way in cleaning up this blog’s cesspool of hate.” So when are you going to prove your real identity? Don’t you want to be held accountable for your statements and contribution to the cesspool of hate. I’ve seen at least a dozen of your posts where you call other contributor names. You’re a hypocrite.
Cite the dozen posts where I call contributors names.
Calling someone a “Trumpist” is not a bad name because I use the word as shorthand for “a follower of Trump.” Referring to a “lying Trumpist” is not name-calling. I am simply describing that a Trumpist who believes the election was stolen is lying.
And are you saying you’ve never called contributors names? I know you called contributors Nazis recently and I know it wasn’t the first time. The fact is that you’re not addressing the contributor by their name so you’re calling them names. You of all people should be leading by example since you’re the one who said we must clean “up this blog’s cesspool of hate.”
I will call someone an “American Nazi” ONLY when I am called a “marxist” or a “commie.” I NEVER call anyone a “Nazi.” An American Nazi is far less dangerous than the German variety to be sure. You can’t reason with such people so I give them a taste of their own medicine to see how they like it.
“Cite the dozen posts where I call contributors names.”
Trumpist top two definitions.
“The act of being a total idiot.”
“A person who has a delicate ego, spreads lies, hates facts, hypocritical, narcissistic, unethical, a White Nationalist and generally gross. That person is a total trumpist”.
Not only does Jeff insult, but he does so in a low and cowardly way.
How does anyone “prove their real identity” in the comments? You demand that he prove his identity, yet you do not say what constitutes proof.
Good question. Ask jeffsilberman. He’s the one who said “People should prove their real identity…” He even said it could be done but he still refuses to do so.
Since you do not know, you should stop demanding it.
“by now anybody who has read Turley knows he weaponizes anything the democrats’ have done and ignores what the now Trump party had done. Turley keeps the cult aggrieved and PO’d at every turn he can.”
Turley does throw out red meat for his followers to devour, but he is a NeverTrumper, let’s not forget.
We have to bear in mind that Turley works for the Republican Senate; he has admitted that he counseled them in private during the last impeachment of Trump and is called upon by the Republican leaders as their constitutional scholar witness in impeachment hearings. I don’t know if Turley is formally engaged as their legal representative or merely their “go-to guy,” but it stands to reason that Turley wants to ingratiate himself by lambasting Democrats whenever he finds an opening and avoids criticizing Republicans unless he must lest he looses all plausible deniability that he is not prejudiced against the Democrats.
Turley is a liberal professor at George Washington University Law school. He leans left to center.
That should read “unless he must lest he looses all plausible deniability that he is in the tank for Republicans.”
You really have a boner for Turley. You can’t stop throwing his name around. Turley says this….Turley does that….One minute you’re praising him and the next you’re tearing him down.
That proves that I don’t suffer from Turley Derangement Syndrome. People who have read what I have long posted recognize that I share Turley’s liberal values and contempt for Trumpism. I generally do not dispute his opinions. I take issue with his employment at Fox News and especially his hypocrisy in ignoring and profiting from the rage his Fox colleagues engender but which he denounces at Fox’s media competition on the Left.
Turley NEVER criticizes the *advocacy journalism” at Fox, Newsmax, OAN or Infowars. Just CNN, MSNBC, NYT, etc.
What it proves it that you need to grow up.
Yes sir, Sergeant!
Her standardized test scores on SATs and LSATs would be good. An IQ test would also be good. I could accept another liberal, which we know she is, but I don’t want with an IQ of 110, which I suspect to be the case. I’d like to see at least 150 for a SCOTUS justice.
I’m sure that she’ll release her scores right after all the Justices on the Court release theirs.
Barry is most likely a puppet of The Blog Stooge. The Stooge is rolling out a new slate of puppets to give the forum a ‘fresh look’..
Here The Stooge suggests that Black nominees to the court need to show their academic credentials and I Q scores. But ‘no’, The Stooge isn’t racist. He’s just your typical Republican.
Barry O’Blarney — The Stanford-Benet I.Q. is vastly overrated as a measure of intelligence.
GOP has nothing to gain from disputing her appointment. She will be confirmed.
Not if the GOP choose to stop her in committee. She doesn’t have the intellect for SCOTUS.
Chosen to fill a quota.
Commissar Jackson = Total FAIL
After 105 years of failure, socialist democrats are still trying to make communism work by nominating individuals who would tear up the constitution in a heartbeat, substituting there own, heartfelt (and wrong) beliefs.
So what kind of privilege did this person have, again?
The republicans will do nothing and fold; that’s the one thing we as their voting base can rely on and trust them to do. One or two will fight, several will grandstand, and at the end of the day…..rubber stamp. How splendid for those of us who wasted a vote on them, and only God knows if it’s corruption or Stockholm Syndrome.
They call it taking the higher ground. I call it weakness, they are afraid of being criticized.
Adam Henry, Nosoy, and t4Trump are new puppets of The Blog Stooge.
When They Say ” Judicial Philosophy”
They Mean “High-Minded Federalist”
Over the multiple days of her confirmation hearings for a seat on the Supreme Court, Ketanji Brown Jackson will have to sit attentively for hours while the 22 members of the Senate Judiciary Committee speechify at her.
Amid all that pontification, there’s a particular phrase you should watch out for that will likely be repeated dozens of times: “judicial philosophy.” The phrase should raise red flags because it’s a signal that the person using it is about to pull a fast one, either to claim they themselves believe something they really don’t, or to pretend that an attack they’re making on Jackson is far more high-minded than it actually is.
While liberals sometimes talk about the “living Constitution” — the idea that as society evolves, our understanding of the Constitution changes — they don’t pretend that it’s some kind of guidebook that tells you the “right” ruling in any given case.
But that’s what conservatives claim to possess in their favored “philosophy,” originalism. They say that the original intent of the Framers should be paramount when deciding constitutional questions, and once that intent has been located, the answers to legal questions will reveal themselves, lit from within with the glowing light of divine wisdom.
When I first read this column, I thought for a moment that Professor Turley was touching on something important here. But this “Judicial Philosophy crap is just a canned talking point Republicans plan to cram down our throats this week. The idea seems to be that ‘liberals are unmoored from the constitution and they’re just making it up as they go along’.
One of the essential things one wants from a person on the Supreme Court is an individual free from bias. Therefore, based on her association with the BSA, where people like the anti-semitic Leonard Jeffries were asked to speak, the Senate should ask the following questions.
‘Did Brown Jackson hold any office or position of influence in the Harvard BSA? Did she have any involvement with the Harvard BSA’s decision to invite Jeffries? If so, what was that involvement? Did she object to the BSA’s decision to invite him? If not, does she regret not speaking up? What is her opinion about the decision today? Did Brown Jackson attend Jeffries’ speech, and join in the BSA’s applause for Jeffries’ antisemitic and anti-white statements? Why or why not?’
Does she interpret whether a law is Constitutional or will she legislate from the
Or will she make decisions based on what Justice Sotomayor wishes for….”what ‘outcomes will be”?
The Senate can hold hearings on anything it wants, but can it confirm a nominee for a position which is not yet vacant?
As far as I know, Breyer has not resigned from the court. Has he done, or can he do, an irrevocable resignation for some time in the future?
If she is confirmed, and he decides not to resign, what happens?
If no one is confirmed, does he stay on the court?
Can the Senate approve multiple nominees for the court, and would they then be able to fill vacancies as they arise?
Who would decide such a question?
I ask because I don’t know off-hand of any other case where there was not an actual rather than a potential vacancy.
Recently an appeals court judge revoked his announce resignation, because he didn’t like the names of his potential successors.
This comes down to a judicial veto of a legislative/executive responsibility.
“can it confirm a nominee for a position which is not yet vacant?”
Yes. Breyer announced that he would resign at the end of this term, as long as a replacement has been confirmed. Confirming a nominee is not the last step in this. Swearing her in is the last step. She will not be sworn in until Breyer resigns (or if someone were to pass away before then, I suppose she could be sworn in then, and they’d have to consider another nominee to replace Breyer).
“If she is confirmed, and he decides not to resign, what happens?”
There is no reason to assume that he was lying about his plan to resign at the end of this term, as long as a replacement has been confirmed. And she cannot be sworn in until there’s an opening on the court.
“If no one is confirmed, does he stay on the court?”
Yes. He explicitly said that he conditioned his resignation on a replacement having been confirmed. If no one is confirmed, he’ll continue to serve. But I do not expect that to happen. The Democrats presumably have enough votes to confirm KBJ.
“can it confirm a nominee for a position which is not yet vacant?”
Anonymous says, “Yes.”
Doesn’t this suggest that the senate could confirm any number of justices-in-waiting who would then be queued for confirmation as spaces on the court would open up? Surely, that can’t be allowed.
The Senate cannot confirm someone who hasn’t been nominated, and there is no rule about a “queue.” You think some idiotic President is going to nominate multiple people, and then an idiotic Senate is going to act on it? We’ve had some stupid Presidents and Senators, but none have been stupid enough to create the situation you’re asking about. We don’t need a law against this when simple common sense prevents it.
Let’s hope the Republicans go with the Barrett Rule.
Turley seems to treat these rules as if they are set in stone. These rules are not binding to any nominees. Furthermore each senate judiciary committee can choose however they want to run their confirmation hearings. Mitch McConnell demonstrated that quite effectively when republicans chose not to question Garland at all. A “Ginsburg rule” or a “Barrett rule” is irrelevant. Turley is treating these arbitrary rules as some sort of precedent that somehow need to be followed.
In reality any judiciary committee can just rubber stamp a nomination as they did with justice Barrett.
Svelaz, by now anybody who has read Turley knows he weaponizes anything the democrats’ have done and ignores what the now Trump party had done. Turley keeps the cult aggrieved and PO’d at every turn he can.
Just like that there’e no rule the senate judiciary committee is required to hold a hearing or vote on a nomination as they did with Garland.
The Republicans should get a transcript of the Kavanaugh and Barrett hearing’s and ask all the questions the Democrats asked, verbatim. Especially Miss Mazie’s and Kamala. I don’t imagine the Democrats would oppose questions they previously felt were important?
If you actually want them to, you should contact your Senators instead of suggesting it here.
Anonee says to Margot:
“If you actually want them to, you should contact your Senators instead of suggesting it here.”
Margot to Anonee – If I have to suggest the obvious I might as well run for office myself. I wouldn’t win I have a great flaw in my character, I’m honest.
Margot, you “suggest the obvious” here, but you’re not willing to suggest it to the people who are actually asking the questions?
If you actually want to improve the questioning by members of Congress, then that’s a stupid approach.
Great suggestion. I am all for transparency and fairness.
Having been around for awhile I remembers there was usually nothing that occurred at Supreme Court confirmation hearings except the strange case of Abe Fortas until Robert Bork then all hell broke loose. And then hell reared itself again with Clarence Thomas and being black protected him none at all because he was a conservative black and not a liberal black. Then 2 democratic justices like RBG and Breyer had fairly benign hearings Then Roberts and Alito had rambunctious hearings but not quite hell. Sotomajor and Kagan were quiet, as was Gorsuch and then Hell was unleashed again on Kavanaugh and Barret. There seems to be a pattern here. And let’s just say it all out loud. Starting with FDR’s selection of 7/of 9 justices over his 12 years in office the Democrats used the Supreme Court to legislate from the bench what they could not get through the people’s elected legislatures. Times changed and the court turned away from legislating.The democrats have been in total withdrawal, like an addict, since that time and they have harmed and destroyed reputations as they lash out and continue to not deal with their affliction. And like an addict, they fail to face the problem, return to the drug and blame everyone else for their dysfunction. Would anyone expect coherent rules and following of those rules from an addict.
Barrett was put on to kill Roe and give Republicans other wins.
Nominees should answer the questions and be voted down if they don’t. All people have preconceived views, even judges, and not asking them does not make them magically neutral. It is better to just have their views be known.
Any Justice who went to Harvard should recuse him or her self from any case involving Harvard.
As for the Supreme Court: Too much Harvard and Yale.
There is nothing in the constitution that says a Supreme Court Justice needs a univversity degree at all’ Why stop at Harvard and Yale.
Is she qualified? That is the question. Will she provide the answers to let us know? No. Democrat hypocrisy pollutes the process of nominating and confirming a Supreme Court Judge.
Ha,ha, ha. I think the Republican Party has the hypocrisy award all sown up.
She is qualified. No judge is required to answer certain questions if they choose to. Not answering a question is not enough to determine whether they qualify or not. Justice Barret also declined to answer certain questions. Does that mean she isn’t qualified to be on the bench?
“She is qualified…”
That is a nonsensical answer regarding an important question. One should reserve such comment until one hears what Jackson has to say.
She is one seeking this most crucial position, so she has to prove herself, not the other way around. If she stays away from too many important questions, she is not fit to be confirmed. Hypocrisy is what you rely on, and that is why your question and you fall flat on your face.
… you say, looking in the mirror.
You have mirrors on the brain ever since you stole the analogy from another. Keep telling yourself how beautiful you are. One day you will realize that it is not a mirror you are looking at. Instead, it is a picture of a pig.
Anonymous ( S. Meyer),
“ If she stays away from too many important questions, she is not fit to be confirmed.”. Huh?
What exactly would constitute “too many important questions”. Justice Barrett stayed away from “too many important questions” during her own confirmation hearing. According to you she wasn’t fit to be confirmed either.
“ She is one seeking this most crucial position, so she has to prove herself, not the other way around.”.
No you dumba$$. She didn’t “seek” this position. She was NOMINATED. Learn the distinction. The Supreme Court is not like any job you just apply for. You are chosen for it.
Clearly, CLEARLY you are woefully ignorant about this process.
Barrett explained her judicial philosophy. To date, from the little I have heard, Jackson didn’t even explain her error that was reversed (See Daniel’s post). Why don’t you list those important things Barrett didn’t answer. Let’s see how they match up to Jackson.
“No you dumba$$. She didn’t “seek” this position. She was NOMINATED. Learn the distinction. ”
How much more idiocy will you drown this blog in. She was indeed nominated, but before being nominated, she sought the job. The nomination generally comes after one finds out if the judge is, or is not, seeking the job.
The Democrats have created this problem…. both in their misconduct in previous confirmation hearings and by using Identity Politics to chose their nominee.
As usual….the Democrats shall play the Race Card and accuse Republicans of being Racists for challenging this nominee’s fitness to serve….no matter the fact she is not qualified due to her views on the Constitution and Rule of Law.
Had she any moral courage she would remove herself from the process and insist the President do a selection process that ignores Race, Gender, and all other superficial qualifications and choose the Nominee that is best fit to serve this Nation by being a fair, just, proponent of Justice.
He did not do that in this Nomination and has caused un-necessary and un-welcomed division….something he swore he would not do and work to heal the division that exists by being a “healer”…..instead he is a “dealer” and has destroyed the credibility of his own Nominee.
There is no single person who “is best fit to serve this Nation by being a fair, just, proponent of Justice.” Presidents have never chosen the single person who “is best fit to serve this Nation by being a fair, just, proponent of Justice,” as that person does not exist and because Presidents always consider other things, such as whether the person’s judicial stances align with their own, which is why conservatives are nominated by Republicans and liberals are nominated by Democrats.
Multiple people are very well qualified “to serve this Nation by being a fair, just, proponent of Justice.” You can instead ask whether KBJ among them. You’ll likely get different answers depending on who you ask, just as you would with any of the Justices already on the Court. You dislike that Biden considered sex and race in his selection. You consider race and gender to be “superficial qualifications,” but they affect every single person’s experiences in the world. Presidents have almost always considered race and sex in their selection, most notably when they exclusively selected white males for almost 180 years. Presidents may also consider other things that you might consider superficial, such as religion, which is why we’ve had no self-professed atheists on the court.
You believe that “Had she any moral courage she would remove herself from the process and insist the President do a selection process that ignores Race, Gender, and all other superficial qualifications.” I believe that if Amy Coney Barrett had any moral courage she would have removed herself from the process and insisted that whoever won the 2020 election be the one to nominate RBG’s replacement, as most Americans wanted. I believe that if the Republicans had had any moral courage when Kavanaugh was nominated, they would have rejected him at clearly temperamentally unfit, and then they could have confirmed a different conservative justice. We all have different opinions about what people with moral courage do.
This is/was a white country. Only an idiot would seek out an alien demographic to install in its highest courts. An idiot.
This is not and was not “a white country.” Black Americans are not “an alien demographic, bigot. Black Americans have been part of our country since its inception. They contributed to our winning the Revolutionary War.
I believe that if Amy Coney Barrett had any moral courage she would have removed herself from the process and insisted that whoever won the 2020 election be the one to nominate RBG’s replacement, as most Americans wanted.”
^^^^insane MSM narrative that you swallowed, or you Democrats think you are the majority all the time, geeze.
NO ……we never felt that way.
there was NOTHING wrong or controversial it’s in the Constitution, DUH!
Don’t be silly. Here’s a summary of multiple polls at the time:
“we never felt that way”
By “we,” you must be talking only about the minority of Americans. Because the majority of Americans wanted to wait the winner of the 2020 Presidential election to choose the nominee to replace RBG.
I believe that if the Republicans had had any moral courage when Kavanaugh was nominated, they would have rejected him at clearly temperamentally unfit
hahahahaha, he has SIDED WITH THE DEMOCRATS ON ALL MAJOR RULING SO FAR YOU LOON!!!!
Apparently you don’t understand the meaning of “temperamentally unfit.”
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