In one of the least-surprising developments of 2022, appellate Judge Ketanji Brown Jackson, President Biden’s nominee to replace Stephen Breyer on the Supreme Court of the United States (“SCOTUS”), was approved by the United States Senate on Thursday by a 53-47 vote, with three Republicans (Collins, Murkowski, and Romney) plus all 50 Democrats voting in favor. Since all the Democrats had announced their votes beforehand, and since their votes were enough to guarantee confirmation, there was no suspense about the vote, and instead reporters looked for unusual angles to cover. But, since all of the obvious unusual angles have already been discussed, let’s look at some of the less obvious angles.
Preparation for SCOTUS
First, anyone who is familiar at all with SCOTUS knows that someone who has already worked successfully as a law clerk for a Supreme Court justice has to be qualified to serve as a justice. Law clerks run the offices for the justices, including reviewing the cases that come up for certiorari (that is, SCOTUS review) and recommending whether to grant it, researching the relevant law on both potential and actual cases, and even doing first drafts of opinions for the justice’s review. In fact, the clerks do so much work for the justice that each justice hires four clerks straight out of law school every year, and the selection process is one of the most rigorous anywhere. As a result, six of the current justices (pre-Jackson) served as law clerks for SCOTUS: Breyer (for Arthur Goldberg); John Roberts (for William Rehnquist); Elena Kagan (for Thurgood Marshall); Neil Gorsuch (for Byron White and Anthony Kennedy); Brett Kavanaugh (for Kennedy); and Amy Coney Barrett (for Antonin Scalia). [For anyone interested, former nominee Merrick Garland also clerked for the court, for William Brennan, but we’ll discuss his nomination later.] Like Kavanaugh, Jackson will replace the justice for whom she clerked.
An interesting side point is the question about whether prior judicial experience is a significant advantage for an incoming justice. In general, the answer is “no”. As an appellate court, the Supreme Court has original jurisdiction over only a few types of case: generally lawsuits between states, but also including lawsuits involving ambassadors or persons of equivalent diplomatic rank. The court never actually tries those cases, though. Instead, it assigns them to a special hearing master (at least for those it agrees to hear — there is an active dispute among the justices whether the court should be able to continue its longstanding practice of dismissing some such cases without hearing them at all, with Justices Thomas and Alito advancing a minority position that such dismissals are per se unconstitutional) and then decides the case based on the special master’s report.
In all other cases, SCOTUS is limited to reviewing the legal issues (which it may decide without taking the lower court’s decisions into account, which is referred to as de novo) and the factual and procedural issues (where it has to give significant deference to the lower court’s judgment). Some judges believe that a lack of trial experience makes appellate judges (including SCOTUS) less sympathetic to the rulings made by a trial court — but appellate courts nevertheless have to give those rulings deference unless they involve purely legal issues, so this can only be a minor factor. In all honesty, the job that best prepares a justice for appellate judging is being a law professor — which is why we see so many justices having served as either part-time or full-time professors.
Judicial “super-legislature”?
The current partisan nature of confirmation hearings for SCOTUS never really developed until 1981. Prior to that, the Senate was controlled by Democrats for 44 of the 48 years from 1933 to 1981 (all except for 1947-49 and 1953-55), and largely by supermajorities; the idea of partisan battles for Supreme Court seats really didn’t begin until the Republicans surprisingly regained control of the Senate in 1981. After that, Republicans were able to nominate and confirm justices who believed in originalism, which eventually became identified as the meaning that statements in the Constitution must be interpreted based on the original understanding of those statements at the time the Constitution was adopted.
And now a trip into my hazy memories. When I was in high school, I was Student Council president as a senior, but I only had one half-semester class that I needed to take to graduate and only two other classes that I wanted to take. Because I didn’t want to graduate early, my senior year I took my first law class, a half-semester class taught by a licensed lawyer (never imagining that someday I would be practicing law myself). I learned in that class that in the “modern era” of 1971, we interpreted the Constitution based on the concept of a “Living Constitution”, which meant that the interpretation the Constitution should be based on contemporary society, even if such an interpretation was different from the original interpretations of the document. That had been the Roosevelt administration’s position throughout the New Deal, and the Supreme Court generally adopted it in “the switch in time that saved nine”. Since WWII it had been the mainstream position in legal circles.
But I was a typically arrogant high school student, and I remember asking the teacher why unelected judges should be the ones changing the laws based on contemporary society instead of an elected federal legislature — Congress — doing so. The entire point of Congress was that the legislative branch made laws. What gave judges the power to make laws? Heck, the Constitution barely defines the “judicial power”, but it spends page after page explaining that the federal government was to be a government of limited powers. So where did the judges get this power to act as a “super-legislature”? [At least, that is how I remember asking the question. Most likely, my memory makes my question more coherent that it was.]
Unfortunately, that question was far beyond the interest level for most of the class, who (unlike me) actually needed the class to graduate and just wanted to do the minimum to get by. You almost could feel the boredom level rise as the teacher mumbled out some inane and self-contradictory answer [again, as I remember it]. Before the other students focused solely on the squirrels cavorting in the lawn just outside the classroom windows, I dropped the point and the class moved on. [Then again, if “pro” is the opposite of “con”, what’s the opposite of “progress”?]
But other law students and lawyers, who were more knowledgeable than me, raised the same point in higher-level classes and didn’t drop it. Beginning that same year (1971), the “living constitution” theory began to be challenged by a school of legal thought eventually dubbed “New Originalism”, and the author of the article proposing that school of thought was a Yale Law professor named Robert Bork.
Originalism rising
“New Originalism” argued that, because the federal government was only granted limited powers under the Constitution, every power given to the federal government was a power that had been expressly conceded to it by either the states or the citizens. As a result, those powers were all the powers the federal government should have, because extending federal power by judicial interpretation was an unfair power grab. At least the constitutionality of laws passed by Congress could be challenged in court, and laws could be amended as situations changed. But judicial rulings were like pronouncements from kings, impossible to challenge or amend. Further, the New Originalists believed that the best way to determine the powers given to the federal government was by determining the meaning that a reasonable person at the time of the adoption of a Constitutional provision would have understood the meaning to be (in other words, its “original public meaning”, not the intent of its drafters, as many prior originalists had contended).
This quick explanation omits that there were certain rights considered to be among the “privileges and immunities of citizens in the several states” that were intended to be treated as fundamental without being specifically enumerated in the Constitution. SCOTUS Justice Bushrod Washington (George’s nephew) briefly described some of them in an 1823 opinion called Corfield v. Coryell. However, we’ll discuss the doctrine regarding those rights, now known as “substantive due process”, in our subsequent discussions about Roe v. Wade and Planned Parenthood v. Casey. For now, we’ll simply note that the dispute between originalism and living constitutionalism affects those rights as well, but we’ll stick to discussing enumerated rights.
Professor Bork’s version of originalism might or might not have caught on as a strictly theoretical proposition. But just two years after the article came Roe v. Wade, a case which could have been created just to emphasize many of the same issues that Bork had raised, and the entire legal landscape changed rapidly. By the time Ronald Reagan was elected President in 1980, seven years after Roe, Bork’s views on originalism (as well as Bork’s views on several other areas of law, such as antitrust) had become a serious challenge to the reigning legal orthodoxy, creating a schism both within legal academia and among the political parties.
One of Reagan’s legal advisors was also a prominent originalist: Attorney General Edwin Meese. Justice William Brennan, a prominent living constitutionalist, ended up getting into a public debate with Meese over their differing methods, with Brennan contending that originalism was “little more than arrogance cloaked as humility” and that “the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.” Meese rejected this claim in toto, stating in response:
“Where the language of the Constitution is specific, it must be obeyed. . . . Where there is a demonstrable consensus among the Framers and ratifiers as to a principle stated or implied by the Constitution, it should be followed. . . . Where there is ambiguity as to the precise meaning or reach of a constitutional provision, it should be interpreted and applied in a manner so as to at least not contradict the text of the Constitution itself.”
In general, classical liberals and Republicans sided with the originalists, while progressives and Democrats sided first with the living constitutionalists and then, more recently, with any of its modern variants: the political process theory, the purposivists, or common-good constitutionalism. But, after Meese spearheaded Reagan’s appointment to SCOTUS of Antonin Scalia, the first self-proclaimed originalist on the Court since the start of the New Deal, originalism spread like kudzu, because the problem with Brennan’s approach and all of its variant approaches was clearly laid out in 1857 by Justice Benjamin Curtis in his impassioned dissent from one of the worst SCOTUS decisions ever, Dred Scott v. Sandford:
And when a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men who, for the time being, have power to declare what the Constitution is according to their own views of what it ought to mean. When such a method of interpretation of the Constitution obtains, in place of a republican Government, with limited and defined powers, we have a Government which is merely an exponent of the will of Congress, or, what in my opinion would not be preferable, an exponent of the individual political opinions of the members of this court.
And that brings us to the present nomination.
The impact of partisan selection
Since Reagan’s election, there have only been five Supreme Court nominations that occurred when the Presidency and the Senate majority were held by opposite parties: four times between 1987-91 with a Republican president and a Democratic Senate majority (Bork, Anthony Kennedy, David Souter, Clarence Thomas), and once in 2016 with a Democratic president and a Republican Senate majority (Merrick Garland). Only two of the Republican nominees facing the Democratic Senate (Bork and Thomas) were originalists; both were trashed in very partisan and controversial hearings; and one (Bork) was not confirmed. Similarly, although from the opposite perspective, the Democratic nominee Garland facing the Republican Senate was not an originalist; like Bork, he was not confirmed by the Senate (however, since the Senate did not hold a vote on his nomination, he at least wasn’t trashed publicly).
Accordingly, for the reasons already noted, whether Jackson was qualified was never really a question in the Senate hearings. Instead, the questions raised during her hearing generally had more to do with her method of constitutional interpretation (with the exception of the questions from Senators Hawley and Cruz, which I will discuss in the next section, and from Senator Blackburn, which I will discuss in the following section). And yet the answers given seemed to matter not at all. In fact, in the last several SCOTUS nomination votes where the nominating party also had control of the Senate, the nominees have received merely a handful of votes from senators belonging to the other party: Alito, 4 votes from Democrats; Sotomayor, 9 votes from Republicans; Kagan, 5 votes from Republicans; Gorsuch, 3 votes from Democrats; Kavanaugh, 1 vote from Democrats; Barrett, 0 votes from Democrats; Jackson, 3 votes from Republicans.
Simply put, partisan selection is the current standard for Senate voting on judicial nominees. Although Jackson portrayed herself as a follower of the “original public meaning” standard in the tradition of Justice Scalia in her testimony, many Republicans may not really have believed that a former Breyer law clerk would really be much different from her former mentor, who is one of the most prominent purposivists, and even if they did believe it, partisan proclivities may still have led them to reject the nominee.
It is worth noting at this point that judges who follow the same judicial philosophy can still reach very different results. In no way does a particular judicial philosophy mandate a specific outcome, which is why the current SCOTUS, with six self-proclaimed originalists on it (Thomas, Alito, Kagan, Gorsuch, Kavanaugh, Barrett), and now perhaps a seventh in Jackson, won’t issue very many 7-2 votes based on that lineup. After all, not many Supreme Court cases are decided on constitutional issues, and even on cases that are, there often will be differing understandings of the original public meaning of a provision. But that discussion is beyond the reach of this article.
The child-pornography canard
Although all of the Republican senators had certain points that they wanted to make, Senators Josh Hawley and Ted Cruz had the most controversial one. They accused Jackson of giving light sentences to child-pornography offenders, expanding on a theme from the fringe conspiracy group QAnon regarding D.C. being run by a ring of child pornographers. Most of the defenders of Jackson’s record with regard to this charge linked to National Review columnist (and Jackson opponent based on her judicial philosophy) Andrew McCarthy’s debunking of those charges, which he repeated when the senators tried to change the thrust of their argument.
But the fact that one of the most prominent conservative lawyers (as well as libertarians) shot down their arguments didn’t seem to have any effect on Hawley, Cruz, or the less-balanced followers of The Former Guy such as Mollie Hemingway and Rep. Marjorie Taylor Greene, as illustrated in the tweets collected by David French. Spending more of my time discussing these creeps and their child-pornography canard is giving them more respectability than they deserve; they need to slink back under the bridges where they live out their troll-like existences.
But the senators also had other mud to sling, and this time they blamed Jackson for being . . . a defense lawyer, or more specifically a public defender. Said Cruz, “You and I have both known public defenders. People go and do that because their heart is with criminal defendants. Their heart is with the murderers, the criminals, and that that's who they're rooting for.” Hawley said that public defenders “are going to have to answer for the clients they represented”. Going along with this perversion of the legal process, Sen. Tom Cotton attacked Jackson for defending accused terrorists while a public defender. And yet public defenders, unlike private lawyers, exist because a 1963 SCOTUS ruling required governments to provide attorneys for indigent defendants, including murderers, terrorists, and other criminals, charged with serious crimes. Apparently these senators, all lawyers who went to Harvard Law (Cruz and Cotton) or Yale Law (Hawley), no longer support the United States’ adversarial system of justice!
[A side note: like Jackson, Hawley and Cruz were also SCOTUS law clerks, serving under the two most recent chief justices, William Rehnquist (Cruz) and John Roberts (Hawley). So they are knowledgeable enough about the law to know that their charges against Jackson are both frivolous and contradictory. To be polite, it is unfortunate that these two would take up so much time at the Senate hearings to spread such ridiculous charges, which seem to be intended merely as “boob bait” (tough-sounding rhetoric with no substance behind it). But at least it disproves the old Washington maxim that former SCOTUS clerks stick together.]
I Am Woman — Perhaps — But I’m Not Sure Because I’m Not a Biologist
Only once have I ever had to testify in front of a legislative committee, and I never really wanted to do it again. Yes, you get to read a statement that you’ve prepared, which always receives a flattering amount of attention. But then you have to be prepared for two types of questions, each with their own sets of prepared answers: friendly questions from the legislators supporting your position, and unfriendly or downright hostile questions from the other legislators. And one of the instructions that you’re usually given is that long hesitations invite future questions in the same vein, so it’s generally better to answer quickly.
In hearings before the Senate Judiciary Committee, one of the questions that both parties tend to focus upon are questions regarding abortion. Democrats prefer to ask Republican nominees whether they believe that some cases are “super-precedents” that cannot be overturned, as well as a variety of related questions about specific cases (including Roe v. Wade) that might qualify. The legal answer is that there is no such thing as a super-precedent, even for cases that have been settled law for a long time such as Plessy v. Ferguson (“separate but equal”), which was decided in 1896 but overturned 58 years later (1954), although Republicans prefer not to give that answer. Republicans generally ask Democratic nominees when human life begins, as well as a variety of related questions about early fetal development. The scientific answer is that human life begins at conception, which tells us nothing about what the law should be, although Democrats prefer not to give that answer. Each nominee has a way of dodging these questions with which he or she is more comfortable. In Jackson’s case, her answer to such questions was generally to say that she was not a biologist and therefore did not know the scientific answer.
But while many Republican senators did focus on questions about human life, a few were more interested in other culture questions. One of those was Sen. Marsha Blackburn, who asked Judge Jackson to define a woman. And the exchange turned into something no witness ever wants: a sound bite moment for the other side:
“I can’t — ” Jackson replied.
“You can’t?” Blackburn said.
“Not in this context. I’m not a biologist,” Jackson said.
“The meaning of the word ‘woman’ is so unclear and controversial that you can’t give me a definition?” Blackburn asked.
Reviewing the entire testimony, it seems that Judge Jackson’s preparation had not prepared her for this simple question, and the antagonistic nature of such a hearing foreclosed any normal follow-up response to minimize the impact of this answer. Perhaps Justice Stewart’s non-answer about hard-core pornography — “I shall not today attempt further to define the kinds of material I understand to be embraced within [hard-core pornography], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it[.]” — would have been better; perhaps not. But for a justice nominated specifically because she was a black woman, her inability to define half of that phrase — another scientific definition that everyone knows (a person with two X chromosomes), but which she preferred not to give because of the negative response it would have drawn from transgender activists — will be remembered (negatively) long after the rest of her jurisprudence has been forgotten. What would Helen Reddy have said?