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.
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 Alito, John Roberts, Sonia Sotomayor, Elena Kagan, Neil Gorsuch, Brett 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.”