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No, Judicial Methodology is Not the Same as Judicial Philosophy

Before the start of the confirmation of hearings of Judge Ketanji Brown Jackson, one of greatest outstanding questions concerned Jackson’s approach to constitutional and statutory interpretation.  “Judicial philosophy” was the very basis that Democratic senators cited in voting against Amy Coney Barrett in 2020. However, within minutes of the start of the hearing, it was clear that Jackson would not discuss her views. Instead, when asked about “judicial philosophy” she responded with descriptions of her “judicial methodology.” It is not the same thing but that evasion was shrugged off by members and commentators alike.

Many of these senators were unrelenting in demanding that Barrett explain her judicial philosophy just two years ago. Sen. Chris Coons (D-R.I.) declared: “What’s at issue is her judicial philosophy.” Yet, after Jackson refused to answer those questions, Coons declared (6:30): “I don’t believe that ‘a judicial philosophy’ is always all that meaningful.”

Likewise, Sen. Mazie Hirono (D-Hawaii) who opposed Barrett as an unacceptable “originalist,” now dismisses originalism and judicial philosophy questions for Jackson (8:48) because “I do not find labels particularly useful.”

Most recently, Sen. Sheldon Whitehouse said that he does not understand all of the focus on judicial philosophy in the Jackson hearings. Yet, in the Gorsuch confirmation, Whitehouse demanded that the nominee address his “judicial philosophy” and compare it to the “judicial philosophy” of the prior nominee, Merrick Garland.

By the second day of questioning, Jackson’s conflation of philosophy and methodology as synonymous became absolute. Sen. Chuck Grassley (R., Iowa) again pressed Jackson on her refusal to answer this question. Jackson then completely merged the terms (1:33): “I do have a philosophy. My philosophy is my methodology.”

That is linguistically and legally wrong. Jackson described the methodology in mechanical steps of reading the text, applying the facts, and avoiding bias. Thus, she explained, “my judicial philosophy is to rule impartially and to rule consistent with the limitations on my authority as a judge.”

Judicial philosophy encompasses how a jurist approaches the act of interpretation of constitutional or statutory provisions. Even as you mechanically go through the steps described by Judge Jackson, you are still left at some point with interpreting words with contested meaning. There are widely different approaches to how to perform that task and how much importance to put on issues ranging from original intent to textual language to the more general purpose of a given law.

The problem is that that “philosophy/methodology” also happens to be the oath that all judges take to “faithfully and impartially discharge” their judicial duties. Indeed, it would be hard to imagine a nominee testifying that she follows a methodology “to rule in a prejudiced fashion and to rule consistent with my personal agenda.”  Literally, every judge embraces that same methodology.

It is akin to a potential client of an investment banker asking what her investment philosophy would be if hired and the banker responding “my philosophy is not to steal the money of clients and use it for my own enjoyment.”

It has become common these days for the meaning of words to yield to the political convenience of the moment. For example, When its real meaning stood in the way of real money, Sen. Kirsten Gillibrand (D-NY) simply tweeted: “Paid leave is infrastructure. Child care is infrastructure. Caregiving is infrastructure.” Done.

However, calling methodology a philosophy robs both terms of their meaning in this context. If you asked someone about their preferred clothing style, you would be a tad confused if they then described the steps that they use in getting dressed from putting on their socks to their overcoat.

In fairness to Judge Jackson, she is not the first nominee to seek to evade questions on judicial philosophy. In that sense, it was not surprising to see a nominee avoid a clear answer. What was surprising was the response of media and legal experts after a nominee claimed that judicial philosophy and judicial methodology are the same thing. Few noted, let alone criticized, the false substitution.

So, for the purposes of this hearing, the two terms will be treated as synonymous. Presumably, upon confirmation, the terms will return to their original meaning for the next Republican nominee.

152 thoughts on “No, Judicial Methodology is Not the Same as Judicial Philosophy”

  1. “Sen. Chris Coons (D-R.I.) declared [in 2020]: ‘What’s at issue is [Barrett’s] judicial philosophy.’ Yet, after Jackson refused to answer those questions, Coons declared (6:30): ‘I don’t believe that ‘a judicial philosophy’ is always all that meaningful.’”

    Just as:

    — A pandemic is not that meaningful, if the protestors are your chosen ones.

    — Masks are not that meaningful, if your chosen ones don’t want to wear one.

    — Lockdown decrees are not that meaningful, if your chosen ones really need a hair cut.

    — Racism and sexism are not that meaningful, if you’re nominating one of your chosen ones.

    — . . .

    The Left’s guiding philosophy has long been: The ends justifies the means. Principles, consistency, equal application of the law — all be damned.

  2. The Democrats promote Ketanji Jackson because she meets three nakedly political criteria:

    1. Black
    2. Female
    3. Progressive

    It’s the same playbook that led to the appointment of Kamala ‘historic’ Harris. Everything else is noise. Biden and the Democrats have placed Jackson, and our nation, in a horrible position.

    1. There are a number of progressive Black women judges and law professors. You think she was picked at random?

      One could just as easily say that the Republicans promoted Amy Coney Barrett because she met “three nakedly political criteria”, 1. white, 2. female, 3. conservative. You can even throw in Christian as a 4th.

      I guess it’s too hard for you to look at the rest of KBJ’s and ACB’s qualifications.

      1. One could just as easily say that the Republicans promoted Amy Coney Barrett

        You cannot have watched the two hearings and put these two judges on the same intellectual plane.

      2. @Anonymous- who said anything about being picked at random? Biden and the Democrats picked Jackson because she was the best black, female, progressive candidate. Same playbook as with ‘Historic’ Harris.

          1. Are you suggesting that opinions differ? That there is a better progressive black female candidate than Ketanji Jackson? If so, who?

    2. “The Democrats promote Ketanji Jackson because she meets three nakedly political criteria:”

      You forgot the most important one: LBJ.

      Judge Brown nomination is a continuing prognostication by the biggest Democrap racist of them all:

      “I’ll have those n****** voting Democratic for the next 200 years.”
      – President Lyndon B. Johnson

      Source: LBJ to two governors on Air Force One

  4. I agree with Turley’s point in his post. It will be interesting if he lambasts some of the Republican Senators for their demagoguing to their Q-Anon constituencies by attempting to smear the judge as a pro-pedophilia and by extension all Democrats and Liberals.

    1. Cory is quite the pandering racist isn’t he? She’s better? Than who? We don’t know who was available but I bet they could better define “female” for us. The Left is historically corrupt, bereft of ideas and this poor woman, if confirmed, will forever bear the stigma of being picked for her gender and race. She might be Oliver Wendell Holmes or better but we’ll always have that yoke of favoratism and tokenism slung around her neck ’cause ol’ Cory can’t contain his racial bias that he would deny to any Caucasian senator as pure, unadulerated racism. Hypocrites are the worst and proud ones a level below that.

        1. What we just witnessed in KBJ’s hearing was Black privilege. She got away with not answering important and relevant questions about her record. Why? Because Black privilege.

          1. Name a single recent nominee who didn’t refuse to answer some important and relevant questions.

            1. KBJ is a cagey, deceptive, disingenuous, not to be trusted, dishonest, far left CRT-embracing radical who is not fit to be seated on the highest court in the land.

              1. So when asked to name a single recent nominee who didn’t refuse to answer some important and relevant questions, you can’t identify even one.

            2. KENNEDY: When does equal protection of the laws attach to a human being?

              JACKSON: Well Senator, I believe that the Supreme Court — actually, I actually don’t know the answer to that question, I’m sorry.

              1. According to you, what’s the answer?

                It certainly isn’t at conception. Zygotes do no have rights.

                1. Blacks did not either until LBJ realized they would make great pawns (slaves) for Democrat elections.

                  1. That’s false. You might want to (re)read the 14th and 15th Amendments.

                    You want embryos to have rights? Amendment the Constitution.

                2. According to you, what’s the answer?

                  First none of us are giving testimony for a seat on SCOTUS

                  A person is in that position, supposedly because of their experience dealing with exactly this question.
                  KBJ could have refused to answer the question. But she admitted she had NO answer for that question. Without being able to accurately recite a SCOTUS ruling, she knew she lacked the intellectual heft to extemporaneously explain her position and square it with the Constitution and statute.

                  Time after time, ACB took questions about her rulings. Often reciting from her written opinions from memory. Not exactly word for word, but almost. Because she rules using her core values, that align with the law, and Constitution.

        2. She does not have the intellectual capacity of a supreme court justice. Democrats are dumbing down everything in our country and it will be the end of us as a functioning republic. This is the beginning of the end.

          1. Or perhaps you’re biased.

            You could also look at a bright side: Evangelicals look forward to the end times and the Second Coming.

        3. He loves being a racist. That’s for sure. Great nations demand merit not melanin and greatness not gender in their leadership class. Failing nations don’t.

        4. “Your nastiness and mediocrity cannot overcome his love and intelligence.”
          ******************************
          Intelligence? You mean rule-busting, race-hustling Spartacus?

          1. Mespo….I didn’t watch too much of the hearing…..so I don’t know if anyone broke-out into a chorus of That Old Black Magic? Or, Me and My Shadow?

    2. “Cory Booker’s wonderful comments:”

      A race huckster praising a person selected on the basis of race (and sex). That’s not “wonderful.” It’s tribalism.

  6. The Democrat Party of today makes me sick. It makes me sick as a human being. It makes me sick as a free American.

    America is doomed if more people do not WAKE UP and vote them ALL OUT OF OFFICE in November.

    The Democrat Party of today is an EXISTENTIAL THREAT to the very existence of America as we know it.

    1. Communists (liberals, progressives, socialists, democrats, RINOs) are the direct and mortal enemies of the U.S. Constitution, America and actual Americans.

      The incremental implementation of the wholly unconstitutional principles of the Communist Manifesto began with Lincoln who nullified fundamental law, imposed martial law and proceeded to turn the country left and it has been all down hill since – from the progressives, through the redistributing socialists, to the full blown conquering communist Obama who threatened Americans and promised the masses of hyphenated invaders saying, “We are five days away from fundamentally transforming the United States.”

      Lincoln received a letter of congratulation and commendation from Karl Marx himself.

      https://www.marxists.org/archive/marx/iwma/documents/1864/lincoln-letter.htm
      _____________________________________________________________

      “These capitalists generally act harmoniously and in concert, to fleece the people.”

      – Abraham Lincoln, from his first speech as an Illinois state legislator, 1837
      _____________________________________________________________

      “Everyone now is more or less a Socialist.”

      – Charles Dana, managing editor of the New York Tribune, and Lincoln’s assistant secretary of war, 1848
      __________________________________________________________________________________

      “The goal of Socialism is Communism.”

      – Vladimir Ilyich Lenin
      _________________

      “The workingmen of Europe feel sure that, as the American War of Independence initiated a new era of ascendancy for the middle class, so the American Antislavery War will do for the working classes. They consider it an earnest of the epoch to come that it fell to the lot of Abraham Lincoln, the single-minded son of the working class, to lead his country through the matchless struggle for the rescue of an enchained race and the reconstruction of a social world.”

      – Karl Marx and the First International Workingmen’s Association to Lincoln, 1864

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