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.