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.
“Nominees have long been prepped to refuse to answer substantive questions and evade direct responses on judicial philosophy. ”
Which means that the questioners need to prepare for this and have counter tactics so it won’t be easy to escape the questions looking believable.
I completely related to most of the points. It was definitely one of the best articles I’ve ever read on this topic. Thanks, Justin, for investing the time in composing this article.
Maybe if Judge Jackson would pull out her blouse and look down she might be able to figure out that she is a woman. Even Joe Biden pointed out that she is a women when he said that he would only appoint a black “women” to the court. Next Joe Biden will tell the Senators to vote for Judge Jackson because if they don’t the Republicans are going to put all the black people back in chains. Joe has been race baiting ever since he bravely threatened Corn Pop with a piece of chain.
Why, oh why do nearly everyone on the internet use the plural word women when they need to use the word woman!!!!!
“ Even Joe Biden pointed out that she is a women when he said that he would only appoint a black “women” to the court.”
This, is how it should have been typed. Friend. Follow along real close.
Even Joe Biden pointed out that she is a “woman” when he said he would only appoint a black “woman” to the court.
And Biden once again was being a shit for brains. This black thing is about as qualified to sit on the Supreme Court, as I am about as qualified to perform orthoscopic surgery!
Judge Jackson as many people pointed out at the Senate hearing is more qualified than most of the judges that currently sit on the Supreme Court!!!!! Your last statement is purely racist.
Today, what makes Jackson more qualified than only one presently on the court. If you can’t answer that, you were blowing wind.
Garland……Great comment.
BTW, I love your photos! What a winter paradise.
Farmers and Ranchers are so important to America!
I started to call the women who birthed me mom. I had to stop and think it over because I am not a biologist.
My last girlfriend asked me if I was seeing other women and I told her ‘I don’t know, I’m not a biologist.’
anony…..that’s a scream! You should write for Greg Gutfeld.
Women did not give birth to you. Idiot. A woman did. One is plural one is singular. What is it about this that you and so many others do not understand is beyond me. This mistake was already made 2 other times before you and it’s been made several times after you. I see so many people on the Internet make this mistake over and over and over and over and over and over!!!!!!!!
My God!!
This is just as bad as people that don’t use paragraphs and they will type and type and type and type and type and type!!!!! i’ve seen comments up to a foot long without one paragraph!! As many times as I’ve seen village idiots, use the word women, when they should have used the word woman. And vice versa. It really proves to me all the mistakes I see when it comes to English class how many of my fellow Americans just didn’t pay attention and just how stupid, how shit for brains they really are.
I agree with you. People don’t seem to understand the difference between the singular and the plural.
A mistake that is meaningless and certainly more meaningful than not knowing what a woman is.
In all fairness, I am not wholly unhappy with this “liberal” on the Court, as I believe it will result in less MEDIA criticism of “conservatives” ruining our country. If Jackson is a true protege of Breyer, I hope her intelligence and judicial acuity will prevail in her opinions. Remember, Breyer was able to cross over and join the conservative justices in several important decisions, including the Atlantic Pipeline case (2020?) and Midland Funding case, as well as joining the CONSERVATIVE dissent in the gerrymandering case of Virginia Housing v. Bethune. Ginsburg was also a justice who was able to rise about her personal views and join conservatives in several decisions. That, to me, is a good sign of true commitment to the rule of law and the independence of judicial inquiry.
Notwithstanding, I am tired of the media focusing on her being Black. After all, Thurgood Marshall sat on the Court more than 50 years ago, and during one of our worst racial crises in history (mid-1960s). and he, too, issued some darn good opinions.
Lin, that is charitable, but it seems to me that Jackson is a prevaricating ideologue who will interpret the constitution and the laws to suit her policy objectives, nothing more.
Instapundit has this about Women’s History Month:
https://instapundit.com/511699/
Young – it is all about the wymen’s.
Young…..and that’s our state of affairs in a nutshell….and I do mean nutshell. Thanks!
For those angry at DeSantis for stopping schools from indoctrinating 1st to 3rd-grade children on sexual matters and transgenderism, you have something else to be angry at him for. DeSantis signed a bill requiring school curriculum transparency in Florida.
Imagine that “our parents have every right to be involved in their child’s education. We are not going to let politicians deny parents the right to know what is being taught in our schools,” DeSantis said.
Imagine that, leftists! DeSantis stands up for the parent’s right to know what the schools are teaching their children. I know how hurt you leftists must be that DeSantis could sign such a bill.
DeSantis would make a great President. I hope he runs rather than Trump.
Regarding Turley’s belief that the confirmation hearing was useless, I disagree. Jackson revealed herself to be a prevaricating progressive activist, pretending to respect the theories of original understanding, sticking to the text and recognising the distinction between interpreting and making law, while disregarding them in practice, as evidenced by her decision to apply the First Step Act retroactively and to review and enjoin nationwide a DHS decision to expand expedited removal when she had no authority to do so and was reversed decisively by two liberal judges on the D.C. Circuit.
I believe she was also disingenuous in her responses regarding CRT and voluntary efforts to overturn the Gitmo system through an amicus brief (on this, there is significant room for disagreement about the substance, but it was troubling that she dodged responsibility, blaming her position on her firm and clients). Her arguments in defence of her seemingly lenient sentencing decisions also seemed very weak to me.
While it is often hard to know how a Justice will perform once elevated to the Supreme Court, I believe in Jackson the progressive activists got their dream nominee. I hope all Republicans and at least one Democrat vote no.
How about a Trump/Destantis ticket?
Maybe, and would set up DeSantis for 2028. But I fear that Trump is too polarising to win.
Daniel, I think the question is, what effect did the unfairness and potential illegalities have on the election. I think a lot. Trump vastly increased his numbers while Biden’s numbers are questionable. That is the crux of the issue as to whether or not Trump is “too polarizing.”
I agree that the conduct of the election raised questions about the extent of support for Biden, especially in a few of the swing states. And I also think that many who did support him are now having second thoughts. Still, I think DeSantis with Trump backing would have a better chance than Trump with DeSantis as VP or with DeSantis backing. While the media will try and demonise DeSantis, I think they will fail. He is able to deflect their attacks robustly, without the belligerence of Trump. He is highly intelligent, seems to pick competent advisers, knows what he is talking about, and speaks and writes clearly and simply. He is the best chance for Trumpism without Trump in my view.
“DeSantis with Trump backing would have a better chance than Trump”
Maybe, maybe not, but I don’t think DeSantis would run if Trump decided to run. I concentrate on what will happen to the other candidates if the media focuses only on Trump. I think many Republicans will have a better chance.
Don’t get me wrong. I like DeSantis, and he has been a great governor. The left tells us how good he is all the time by showing us how much they need to destroy him.
Agree with much of what you say. However, there is a learning curve for the newbies coming into the presidency (ie, those who have not been hanging around DC for their entire adult lives like Biden). Trump learned a lot of lessons the hard way his first time around. Hopefully he would hit the ground running and not make the same mistakes again — most importantly with his staffing! He must do a clean sweep of all the deep state trash and get his own loyal staff in place quickly…a monumental task for any Republican in the swamp of DC.
DeSantis will likely make his own run for the White House, at some point, but he will have a steep learning curve that will slow his agenda — on top of the media, the DC establishment, Intel community, “dark money” groups (Sheldon Whitehouse’s favorite topic) etc, gunning to take him out like they did to Trump….like they do to every Republican.
A Trump/DeSantis ticket will give DeSantis the chance to learn on the job for his run in 2028, after which he will hit the ground running full steam ahead.
Something to consider for why Trump/DeSantis is a good ticket for a second Trump term.
But then again, if DeSantis ties himself to the Trump train and their second term goes badly, then DeSantis, like Pence, may be done, a sunk ship. So on second thought, there is almost certainly no way DeSantis would hitch his wagon to a Trump ticket.
But I also think Pence is exploring his own White House run. Crazy as that sounds.
“DeSantis would make a great President. I hope he runs rather than Trump.”
Daniel, I would be happy with either one. I doubt DeSantis will run if Trump wants to run.
When thinking about the two different scenarios, one has to wonder how each candidate would affect everyone else voting in the election. With Trump, we might see the media so focussed on Trump that they take their eyes off the other candidates to the benefit of all Republicans running.
I have an inherent dislike for politics but am forced to deal more with politics than the substance of policy, where everyone’s attention should be placed.
Daniel, I agree with you about Jackson
Daniel: I cannot disagree with you on several of her positions, but I am reminded of how many times I wished Chief Justice Roberts had ruled differently. As far as Jackson’s “progressive activ[ism],” -on this, I agree with you, especially regarding CRT. However, to me, one of her most honorable decisions was in Center for Biological Diversity v. McAleenan, in which she shot down environmentalists’ challenge involving Trump’s border wall. Her opinion conclusion was: “This Court finds that Congress has spoken in no uncertain terms about the limits of judicial review when it comes to legal claims that challenge on non-constitutional grounds the DHS Secretary’s authority to waive otherwise-applicable legal requirements with respect to the construction of border barriers under the IIRIRA [Illegal Immigration Reform and Immigrant Responsibility Act].” So I think/hope she continues to employ independent and fair analyses.
Lin, thanks for the reference to that case. It shows there are limits to how far Jackson will go, at least as a District Judge, in ignoring statutory language or precedent on constitutional matters that is on point. This came after she was decisively reversed in Make the Road, and that may have had an impact. Still, it does give some glimmer of hope, though to me not much.
Agree.
Turley says:
“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).”
Good for Turley to criticize a Republican!
Turley also had said:
“I do not agree with some objections to Jackson, like her alleged support of critical race theory, her advocacy for clients or her work as a judicial clerk.”
The first link Turley cited in the above quote:
“Biden’s Supreme Court Pick Championed Advocates Of Critical Race Theory In Lectures, Speeches”
https://www.dailywire.com/news/bidens-supreme-court-pick-championed-advocates-of-critical-race-theory-in-lectures-speeches
Turley rejects the Conservative smear that Jackson is a *champion* of CRT.
The second link Turley cited in the above quote:
“Biden pick for Supreme Court represented terrorist suspects as public defender”
https://justthenews.com/government/courts-law/biden-pick-supreme-court-represented-terrorist-suspects-public-defender
Turley rejects the Conservative smear that defending terror suspects renders her a terrorist sympathizer.
I am not permitted to include the third link Turley cited in the above quote, the headline of which read:
“Supreme Court nominee Ketanji Brown Jackson is a threat to Constitutional rights”
To his credit, Turley objected to this hit piece on *Fox News* which attempted to brand her as a liberal activist.
Once again, it is plainly evident that Turley has no truck with Conservative false narratives. Predictably, he was NOT invited on the Fox prime time shows to disabuse the Trumpist hosts of these cheap shots to her character.
Jeff, you can include more than two links as long as you remove the “https://www” at the beginning of the URL (or just “https://” if there is no “www” in the URL). Removing those characters means that they won’t be live links that one can click on, but they will still give people a functional URL to copy and paste.
Anonymous says:
“today we have wall to wall coverage on the private ravings of Justice Clarence’s wife”
We have a good faith disagreement about how much emphasize a news organization should give to a news story, but
at least you concede it is not *fake news*! Bravo! And you are correct in calling her messages “ravings”! Bravo again.
Let’s see if Turley condemns these ravings by Justice Thomas’ wife and whether he has an ethical obligation to recuse himself from cases which bear on Trump. He should not add this news to the list of controversies he conveniently ignores.
In case anyone is not aware of how fake and left-leaning the “news” actually is….
Instead of reporting today on the substance of Ketanji Jackson’s hearing….
or reporting on Hunter’s messages *implicating his dad, the current president, in corrupt, foreign money-making scheme*….
Instead, today we have wall to wall coverage on the private ravings of Justice Clarence’s wife — which the fake news has made into a major national story.
No matter that the media ran this hit job story while Justice Thomas was still in the hospital. It’s what the Fake News “does.”
Is Hunter’s laptop a national story that should get wall to wall coverage according to the Fake News? Nah.
They said, “Let’s go after Clarence Thomas’s wife and run THAT story wall to wall all day long.”
The story is actually that Thomas did not recuse from a case involving his wife’s emails to Trump’s CoS.
Anomaly,
You imagine that there is a controversy
over the alleged fact that Thomas did not recuse from a case involving his wife’s emails to Trump’s CoS. And, like much of what you post, I am sure that if we follow you down your new rabbit-hole that we will find that it leads to nothing more than more innuendo and lies.
LOL. It’s not an “alleged fact that Thomas did not recuse.” It’s a fact: https://www.scotusblog.com/case-files/cases/trump-v-thompson/ Like much of what YOU post, your comment is ignorant.
Anonymous: Actually, sir or madam, I believe that your statement is either erroneous or incomplete. Justice Thomas only opined that the Court should HEAR the case. The issue over his recusal—i.e., declining to review and/or issue an opinion on the MERITS, -if the Court had chosen to review the case-,—is not before us.
It was a shadow docket case — as are an increasing number of their cases in the last few years — rather than a merits docket case. SCOTUS ruled on the application for a stay, 21A272: “The application for stay of mandate and injunction pending review [of a separate petition for certiorari] presented to The Chief Justice and by him referred to the Court is denied.” It was an 8-1 ruling with Thomas as the only dissent.
You’re mistaken that “Justice Thomas only opined that the Court should HEAR the case.” The decision notes that “JUSTICE THOMAS would grant the application [for a stay].” In other words: Thomas would have blocked the release of hundreds of pages of Trump Admin records to the Jan. 6 Committee — including responses by people like Mark Meadows to his wife’s emails — pending a decision by SCOTUS about whether to even grant cert. That cert petition was denied on February 22 (https://www.supremecourt.gov/docket/docketfiles/html/public/21-932.html), but the decision rejecting the stay came on Jan. 19.
?????
As you know, stays are granted (generally assuming a court finds a prima facie likelihood of success on the merits) PENDING FURTHER/FINAL REVIEW after more fleshing out of presenting issues/arguments. Can we not assume that this is what Thomas wanted?
And by the way, as you know, the majority merely dismissed the relevant/challenged language in the Circuit opinion as “nonbinding dicta,”–is that not true? Maybe Thomas simply disagreed with that. Why are you assigning ulterior motives? (say you: “In other words: Thomas would have blocked the release of hundreds of pages of Trump Admin records to the Jan. 6 Committee —” ) To what end??? merely a temporary delay? -again, to what end?
Neither you nor I dispositively know the reasons why Thomas wanted more review by the Court. I accept your opinion as merely speculative.
Kentaji Jackson is the final deathblow of common sense in America
Women produce something called eggs. Men produce something called sperm. As Kamala Harris might say, eggs are big and sperm are small.
First, women (adults) do not produce eggs. If a person has eggs, the eggs were all produced prior to birth, though they’re released later. However, the existence of eggs does not determine whether someone is a woman, since it’s possible that she was born without any eggs. Likewise, some men do not produce sperm. In rare cases, a single person can release both eggs and sperm. Human biology is more complex than many are aware of.
Some trolls are born without brains but still get paid money by Act Blue. Better that trolls post brainless, mindless garbage and make bucks, than be sentient, poor individuala
Perhaps you have Fragile X, which is to say, a male genetic disorder typified with cognitive impairment, big ears, long face and huge bull balls. Oh wait, you have no test|cles. Maybe you have Turner Syndrome, a female genetic disorder with a thick neck, intellectual delay and hirsutism. But wait, they have ovaries and a vulva, so that rules you out too.
Let me back to you on your genetic condition. You sure youre not the creature from the black lagoon?
A human walks on two legs and a dog four. ATS logic is a human who is born without legs or loses them is not human.
“Human biology is” complex, but some humans do not have the capacity to KISS. If everything is indefinite, they believe they don’t have to learn how to think.
THall…………Wow! I feel like I’m taking a college course just by reading your comment. Your channeling Kamala’s wisdom is what did it!
😀
Dear Professor Turley, would you kindly comment on Trump’s lawsuit of Hillary Clinton: https://nypost.com/2022/03/24/trump-sues-hillary-clinton-dnc-over-unthinkable-russia-plot-in-2016-election/
More like the death of the American mind. Biden’s Handlers and Putin look astonishingly the same
“Invasion of the Fact Checkers”
https://www.tabletmag.com/sections/news/articles/invasion-fact-checkers
“Has any story ever been more energetically fact-checked than Hunter Biden’s laptop? The news broke just weeks before the 2020 presidential election, and was so effectively buried by accusations of disinformation and social media bans that it became synonymous with the power of the new truth regulating bureaucracy….. What was it about again? Oh yes, the evidence of corrupt business dealings involving then-candidate Joe Biden, his family, and a Ukrainian energy company.”
REGARDING ABOVE:
Kim Yuu and Zenden are most likely new puppets of the Blog Stooge who’s been rolling out several new puppets this week.
REGARDING ABOVE
I’m not a Scatologist, but I know what SH|T is and the above is grade A prime SH|T
Prof. Turley writes that “it is clear now that our confirmation process is a scripted and shallow exercise for all parties.”
I don’t think this is entirely true. For example, the exchange between Senator Blackburn and Judge Ketanji Brown Jackson on the definition of a woman clearly wasn’t scripted. And there were many other such nonscripted dialogues that revealed much about Judge Jackson’s positions on a host of issues.