Is it Okay Now to Say There is a Thin Record on Jackson’s Judicial Philosophy?

With the completion of her two days of confirmation testimony, one fact is now clear: Judge Ketanji Brown Jackson insists that she has no judicial philosophy other than a judicial methodology that is essentially identical to her oath of office. Putting aside the legal and linguistic problems with that position, most of the media and legal experts have simply shrugged and moved on. That is curious because just a week ago, many of these same figures went ballistic when I noted that we have little evidence of a judicial philosophy in past decisions by Judge Jackson and it would be one of the key issues in her confirmation hearings.

Indeed, it was treated as racist to even note that Jackson’s record does not offer a clear judicial philosophy on the interpretation of the Constitution or statutes. Democratic senators like Sheldon Whitehouse have now recognized the “fact that Judge Jackson said ‘I do not have a judicial philosophy.’” (3:45) It is not clear if we can now take Jackson’s word on the subject.

CNN legal analyst and law professor Steve Vladeck was one of the commentators who objected to my column that the record is thin on Jackson’s judicial philosophy on interpreting the Constitution or statutes. (For the record, I have previously criticized Vladeck for false legal claims).

Vladeck declared that the claim that the record on a judicial philosophy is “bunk” and noted that she has hundreds of decisions. Notably, Vladeck only responds to my reference to a “comparably thin record” despite the fact that it was a reference made “in terms of her judicial philosophy.”

Vladeck suggested that I was saying that she had little experience. I not only raised the record solely in terms of her judicial philosophy but previously discussed in writing and on television Jackson’s experience on the court. None of that matters with today’s hair-triggered commentary.

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As I noted later, that is a bizarre take since all but one of those decisions were trial court decisions. Most deal with insular evidentiary or trial issues. As with prior nominations, I read as many as I could to do due diligence as a legal commentator. Counting the number of decisions is a rather superficial point when few deal with issues illustrative of judicial philosophy. Yes, 10 appellate decisions can be more illustrative than 100 decisions issued on trial issues. I did not find much of a record on how Judge Jackson interpreted constitutional or statutory text. With limited publications outside the court, it was a thin record on opinions showing how Jackson would approach defining rights or interpreting text.

As a trial judge, Jackson was required to follow not just the precedent of the Supreme Court but the appellate court. That was not criticism of Jackson. I have stated repeatedly that I consider her work as a trial judge and litigation experience to be major pluses for her nomination. Yet, citing the raw number of decisions does not answer the question of her judicial approach to constitutional or statutory interpretation. As I noted, there are a couple decisions that offered some insight but not a clear understanding of her judicial philosophy. I have also repeatedly noted that other nominees have been evasive on questions of judicial philosophy.

Nevertheless, Vladeck called it all “bunk” to say that there is little record to determine her judicial philosophy.

Some went even further. One of the most extreme voices was the Senior editor of Above the Law Joe Patrice who 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.” It did not matter that I asked precisely that question about Court nominees Samuel AlitoJohn RobertsSonia SotomayorElena KaganNeil GorsuchBrett Kavanaugh, and Amy Coney Barrett.

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.”

Now Jackson herself has claimed that she has no judicial philosophy and only a judicial methodology. Senators immediately echoed that view and insisted that she does not have a judicial philosophy and that is just fine.

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.”

Yesterday, Sen. Sheldon Whitehouse said (3:45) Jackson clearly stated that she does not have a judicial philosophy and 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.

It now appears that judicial philosophy does not matter for many senators and commentators who previously wrote exhaustively on that issue for prior nominees. Fine. However, is it ok now to say that there is no clear record establishing a clear judicial philosophy for Jackson?

Jackson was presumably not using a racist dog whistle in denying such a judicial philosophy but it is not clear if her own account of her decisions will be declared “bunk.”

123 thoughts on “Is it Okay Now to Say There is a Thin Record on Jackson’s Judicial Philosophy?”

      1. David,

        This is also interesting: https://www.bbc.com/news/magazine-34290981

        There is a similar group in Africa.

        Some of the boys look like girls and are dressed as girls until puberty when their male organs appear. Surprise!

        Except it isn’t a big surprise.

        Family sometimes guess they have a boy because the child’s behavior is roughly male and more aggressive than girls. I have never read that spending their childhood as faux girls had any impact on sexual orientation or gender identity which is interesting in itself.

  1. Americans – Republicans, Democrats, and party-fluid alike – stand united. Ketanji Jackson is the best progressive black woman for the job.

    1. “Ketanji Jackson is the best progressive black woman for the job.”

      +++

      In other words, Unqualified.

    2. And come to think on it, given her nuanced answer, are we even sure really is a woman?

      Perhaps the Senate should hire a biologist to check under the hood.

        1. That’s right, I was working as a full time biologist as a side job through a lot of those younger years, but I don’t think I would have even checked under that “hood” back then. LOL;)

          Now that I’ve settled that, send in the next best qualified Black Boobs since that’s the insult the puppet Biden’s handlers have forced us all to judge for the most qualified to choose from.

          And tell Branden’s handlers they needs more Clowns with their Circus.

  2. High School biology. A woman has to X Chromosomes and a man has one Y Chromosome and one X Chromosome. The judge would have learned this fact in High School but now she can’t give a simple definition of what a women is. Just what we need another woke judge on The Supreme Court. Pray

      1. David Benson – 229 weeks that you owe me those citations. Don’t comment on anything else until you get at least half of them done.

    1. She dodged this question because if she relies on biology she offends the so-called progressives and if she relies on identification she offends everyone else. A better way to have dodged this would have been for her to say that the matter could come before her as a judge, so she should not express a view. I think she was surprised by the question and so gave an absurd non-answer.

    2. Some people do not have XX or XY sex chromosomes. They may instead have only an X chromosome, or be XXY, or XXX, or XYY, or XXYY, or XXXY, or XXXX, or an XY/XXY mosaic, or an X/XXX mosaic, or an XX/XY chimeric, or some other variation.

      Ti T, did you have a crappy HS biology class, or did you fail, and is that the reason you don’t know this?

        1. I know that biology is more complex than you admit or that you have any interest in learning.

          1. So you don’t know what a woman is!

            It’s complicated for you.

            You must have been a hoot at your high school prom.

          2. Anonymous, since you didn’t provide a source for your info on xxxy chromosome information I Googled it. You are correct that their are such chromosome anomalies. These incidence are very very very rare. Is there any evidence that men who say they are women have any thing other than an XY chromosomes. If their was such evidence there would be paper after paper produced by 100 transphobic doctors to report such occurrences. We see no studies put forth by such doctors because if they were subject to a simple blood test their theories would be found to have no merit. Just as in pointing out extremely rare occurrences by you somehow proves that transphobia is excused by genetics. Your inference too is without merit and is just your attempt to show us that you are just such a smarty pants. Some may be impressed but most won’t be.

            1. Thinkitthrough,

              Not usually chromosomal differences in transsexuals or homosexuals but some brain differences are said to have been observed.

              That could point to some other genetic differences or perhaps accidents in utero.

              Sooner or later everything that can go wrong probably will go wrong.

            2. I tried posting this several minutes ago, but it hasn’t shown up, so I’ll try again:

              You claim that these are “extremely rare occurrences,” but we actually do not know how common chimerism is.

              The prevalence of natural chimerism in humans is hypothesized to be as high as 10%.
              Wenk, Robert E. “A review of the biology and classification of human chimeras.” Transfusion 58.8 (2018): 2054-2067.
              “there is a growing realization that chimerism may be more common than hitherto thought because most cases, including some with XX/XY constitution, have been discovered accidentally (Boklage, 2006a; Golubovsky, 2006; Peters et al., 2017).”
              Madan, Kamlesh. “Natural human chimeras: A review.” European Journal of Medical Genetics 63.9 (2020): 103971.

              Despite your claim, one cannot determine xx/xy chimerism — or any other kind of chimerism — with “a simple blood test.” The person will have one kind of cells in one part of the body and another kind of cells in another part of the body, where there is no way to determine how the body splits between the two cell types, and where doctors cannot even extract cells from some parts of the body, like the brain, without surgery. One of these fractions will include bone marrow and therefore blood (so that will be genetically homogeneous), and the other won’t (and that will be genetically distinct).

  3. This comment may be more out of my ignorance than reality but it seems to me that in the last several decades, Republican appointed justices have grown once on the Supreme Court in ways that few would have predicted while Democrat appointed justices seem to have stayed partisan. I’m thinking of Earl Warren (civil rights), Harry Blackmun (abortion rights) and Antony Scalia (punitive damages authorized by state law) among others. I cannot think of a Democrat appointed justice who has shown similar growth. It seems pretty clear that Obama’s appointees have remained partisan Democrats. It also is very disappointing to see Democrats on the Senate Committee continue to show their racism by not letting Judge Jackson be exposed to the same hard questions asked by them when it was a white nominee. Judge Jackson should be allowed to soar or crash on her own ability, not protected by people who act like they really thhink she is inferior.

    1. You are hardly ignorant. The following is embarrassingly stupid, idiotic, senile, worthy of being thrown into a mental facility save for his posing a danger to little girls. Who could have ever imagined that a stolen election would cause so much death, sorrow, and a black nominee to SCOTUS who can not define “woman”?

      Build Back Hungrier™

    2. Very well said.
      I’m not a student of the Supreme Court, so I will ask if anyone of Turley’s readers would know how far back in history we would need to go to find a Democrat-appointed Associate Justice who ‘grew’ once confirmed and had some time on the bench?

    3. All of your examples are quite old. And for the most part Scalia remained quite partisan. All the current Republicans on the court are rabid partisans and getting worse.

    4. Has it occurred to you that your opinion about who has “grown” is influenced by your political values?

  4. I don’t even know what to say. I know the Professor has the best of intentions, but this Liberal mind-blindness is maddening. There are no words for what has been done to our society over the past several years, and there is only one culprit: the modern, American Democratic Party. Period. Wake up before you are dead, metaphorically OR literally. Because those are the choices if you keep it up. Thank you for giving a sane analysis of this candidate; no thank you to all that it portends. Enough.

  5. ABA

    AMERICAN BOLSHEVIK ASSOCIATION
    _______________________________

    I PLEDGE ALLEGIANCE TO THE AMERICAN BOLSHEVIK ASSOCIATION

    (to enhance my “Social Score”)

  6. American Bar Association Gives Judge Jackson Unanimous ‘Well Qualified’ Rating

    U.S. Supreme Court nominee Ketanji Brown Jackson has received a unanimous “well qualified” rating from the ABA Standing Committee on the Federal Judiciary.

    The ABA announced the rating in a press release and letter to the Senate Judiciary Committee on Friday.

    The standing committee evaluates federal court nominees on the qualities of integrity, professional competence and judicial temperament. The committee doesn’t consider philosophy, political affiliation or ideology.

    The standing committee chair, retired Judge Ann Claire Williams, will appear before the Senate Judiciary Committee on March 24 to testify about the rating.

    Well qualified is the committee’s top rating. The other ratings are “qualified” and “not qualified.”

    The standing committee gave Jackson a well-qualified rating in April 2021 when it evaluated her for the U.S. Court of Appeals for the D.C. Circuit. It gave her a qualified rating in 2013 when it evaluated her for the U.S. District Court for the District of Columbia.

    Edited From:

    https://www.abajournal.com/web/article/judge-ketanji-brown-jackson-gets-well-qualified-rating-for-scotus-by-unanimous-aba-committee

    ……………………………………………………………………

    KEY SENTENCE ABOVE:

    “The committee doesn’t consider philosophy, political affiliation or ideology.”

    Professor Turley would have us believe that ‘Judicial Philosophy’ is the crucial determining factor in deciding if a judge is qualified for the court. Yet the American Bar Association does not even consider philosophy. Is the ABA way off base? Or is Turley promoting partisan talking points?

    1. “Professor Turley would have us believe that ‘Judicial Philosophy’ is the crucial determining factor in deciding if a judge is qualified for the court. Yet the American Bar Association does not even consider philosophy. Is the ABA way off base?”

      Nice straw man argument: The ABA never consider judicial philosophy… because it would embarrass left-wing lawyers. The Professor is simply asking and advocating KNOWING this nominee’s particular philosophy regardless os whether the partisan ABA is interested or not. The rest of us, as citizens, have a right to know what this idiot believes and what make-believe nonsense on women or the law she is going to attempt to apply.

      If you don’t like it, stop nominating people with indefensible records. Seriously, sentencing guidelines are wrong because there is so much child porn available? Does that mean rapists who use Tinder should get a break because lots of people are looking for sex? It was a dumb argument, and she was stupid to make it.

    2. The ABA approval means nothing. Their disapproval means nothing as well. Jackson should have spoken for herself, but I think she has problems doing so, as noted in her immigration decision that was effectively 3:0 against her.

    3. The ABA has become a corruptible organization in recent decades. Though their ‘rating’ of qualified or not qualified are very broad, who really cares what the ABA’s rating is — it isn’t worth the paper it’s printed on (yes, I stole that quote from Samuel Goldwyn of movie studio fame who was referring to the value of a verbal contract).
      Technically, one does not need to a member of the American Bar to serve on the Supreme Court, but in the modern era, it’s been an unwritten ‘understanding.’

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