Below is my column in The Hill on the confirmation of Judge Ketanji Brown Jackson and the death of the confirmation process as a meaningful and substantive process of review. The confirmation hearings continued a long trend towards superficiality and jingoism when it comes to the discussion judicial philosophy and doctrine. Nominees have long been prepped to refuse to answer substantive questions and evade direct responses on judicial philosophy. This did not start with Judge Jackson but it is clear now that our confirmation process is a scripted and shallow exercise for all parties.
Here is the column:
“This is not a normal day for America. We have never had this moment before.” Those 15 words from Sen. Cory Booker (D-N.J.) captured the historic confirmation hearing for Judge Ketanji Brown Jackson, the first Black woman nominated to the Supreme Court. In other respects, however, the hearing was an all-too-familiar moment, particularly in its lack of substantive legal discussion. The Jackson hearing continued the rapid reduction of the range of questions for nominees, leaving these hearings as little more than performance art for senators and an endurance test for nominees.
The hearing was impressive in the ability of senators to move effortlessly between diametrically opposing positions. For those with memories extending back to 2020, there were turns that were enough to snap your neck. In Judge Amy Coney Barrett’s hearing, members like Sen. Chris Coons (D-R.I.) declared: “What’s at issue is her judicial philosophy.” Yesterday, during Jackson’s hearing (around the 6:30 mark), Coons declared: “I don’t believe that ‘a judicial philosophy’ is always all that meaningful.”
It was clear from the outset that Jackson would not discuss her judicial philosophy on interpreting the Constitution or statutes — the very issue Democratic senators cited in voting against Barrett in 2020. When asked about her judicial philosophy, Jackson responded with a discussion of her “judicial methodology.” Indeed, on the second day of questioning, Jackson told Sen. Grassley that “I do have a philosophy. My philosophy is my methodology.” It is akin to asking someone about their preferred clothing style and having them respond, “First, I put on my socks, then my pants, then my shirt, then my jacket … and then I am fully dressed.”
Given that evasion, it was not surprising that Coons felt compelled to say judicial philosophy was really not that important and the key all along was methodology. Sen. Mazie Hirono (D-Hawaii) agreed. After labeling Barrett an unacceptable “originalist,” she now dismisses originalism and judicial philosophy questions for Jackson (around the 8:48 mark) because “I do not find labels particularly useful.”
In reality, it did not seem like any substantive answers were “particularly useful.” I have complained about that lack of substance in prior hearings where nominees discussed favorite movies and baseball but not long-held principles of constitutional interpretation. The Ginsburg Rule — enabling nominees to refuse to answer questions about their positions on particular rights — has reduced confirmation hearings to the nutritional value of a Slurpee.
That was evident, again, in this confirmation as Jackson refused to answer questions ranging from the scope of amendments to contemporary controversies. Some of those questions were, in my view, inappropriate, such as Sen. Tom Cotton (R-Ark.) demanding her view on the proper penalties for crimes ranging from murder to rape. She was right to refuse to answer such purely political questions (9:55).
Other questions, however, were related to the Court or her own approach to the law. While some again were immaterial to her confirmation, they were material to the senators tasked with giving “advice and consent” on her nomination.
The question is, what is the basis for a nominee to categorically refuse to answer?
Consider the repeated questions of how Jackson feels about court-packing schemes to add an instant liberal majority on the Court. I fail to see the relevance of that question for a nominee; Jackson’s personal support or opposition to court-packing would not establish her judicial philosophy.
Jackson invoked the Ginsburg Rule to say that she could not ethically answer the question. Justice Barrett also refused to answer that question. Yet, other justices (including Justice Stephen Breyer, who Jackson hopes to replace) have spoken publicly against the scheme; the late Justice Ruth Bader Ginsburg publicly condemned the plan. If Jackson is correct, these current and former justices all violated ethical rules by criticizing ethical rules. How so?
Jackson told Sen. Alex Padilla (D-Calif.) (at the 12:03 mark) that judges are not supposed to “form opinions in the ether” but must wait for such “issues being litigated in the courts” to come before them.
There is no ethical rule that prevents a nominee from expressing her opinions on legal issues in such a hearing. Congress can clearly expand the Court constitutionally; it did so in the past. There is no pending case on court-packing because no court-packing has been attempted by Congress.
What was particularly incongruous is that Judge Jackson had no objection to discussing other issues, including possible legislation. When asked about possible mandates for cameras in the courtroom, she said she could give her opinion but wanted to get more information before taking a public position. Why can a nominee discuss court camera legislation but not court-packing legislation? Both controversies concern the Court’s internal functioning. Past justices have spoken publicly against cameras, as they have court-packing.
The Jackson hearings highlighted how completely nonsensical our confirmation process has become. Nominees are now prepped to say as little as possible and to refuse to answer any “issues” they do not want to address.
Even for those of us who are critics of the Ginsburg Rule, this is not what the famed justice meant when she said that “a judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.” It was a refusal to say, “how I would cast my vote on questions the Supreme Court may be called upon to decide.”
Ginsburg actually discussed many of the types of questions that Jackson declined to answer. For example, Jackson was pressed repeatedly on “substantive due process” but would only note that the Court has recognized various unenumerated rights under substantive due process. In contrast, Ginsburg spoke at length on the different lines of cases and her view of those lines. That includes answering how she viewed the scope of fundamental rights and the “tension” between different lines of cases.
For example, Ginsburg testified how abortion rights belong to women: “It is essential to the woman’s equality with man that she be the decision-maker, that her choice be controlling. If you impose restraints that impede her choice, you are disadvantaging her because of her sex.”
Yet the rule has now become a shield for nominees to refuse to discuss “issues” generally, any “hypothetical” concern about the courts or the law — in other words, any substantive legal views. In what various senators described as a “job interview” for a lifetime appointment to the highest court, senators can ask any question except those that would substantially inform them of a nominee’s views or philosophy. Half of the senators ask questions that will not be answered, and the other half ask questions that offer little more than legal truisms or personal anecdotes.
Since its articulation in 1993, the Ginsburg Rule has grown like confirmation kudzu, strangling the life out of these hearings. The Framers were not known for superficial or superfluous exercises. Yet we have effectively replaced “advice and consent” under Article II with “evade and relent.” In reality, we have had “this moment before” and will have many more like it, unless we demand more from confirmations.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.