President Joe Biden’s Supreme Court nominee brings to the fore several issues. Judge Ketanji Brown Jackson has served as a federal judge on the United States Court of Appeals for the District of Columbia Circuit since 2021. Prior to that, she was a district judge on the United States District Court for the District of Columbia from 2013 to 2021, and was vice chair of the United States Sentencing Commission from 2010 to 2014.
She is expected to be confirmed by the Democrat majority in the Senate Judiciary Committee and in the full Senate, maintaining the current liberal and conservative numbers on the Court.
She has been criticized for her record of letting sex offenders off with sentences well below the recommendations of prosecutors and sentencing guidelines. She defended her actions in the confirmation hearing. That prompted Alabama Republican Attorney General Steve Marshall to comment that such actions raise concerns about her being soft on crime.
She refused to answer the simple question from Sen. Marsha Blackburn, R-TN, of what is the definition of the word “woman?” Jackson said that she could not define the term. “You can’t,” Blackburn asked? “Not in this context. I’m not a biologist,” Jackson said.
The same Democrats who so enthusiastically defend this African American woman’s nomination opposed another African American woman nominee several years ago.
Jackson refused to condemn the radical idea of packing the Court to establish an ideological or political majority. Some Supreme Court Justices and other officials have condemned this as dangerous to the ideal of justice, because of the political influence it would inject into judicial matters.
She has embraced radical philosophies, like critical race theory. She was asked about it by Sen. Ted Cruz, R-TX: “Do you think that’s an accurate way of viewing society and the world we live in?”
“Senator, I don’t think so, but I’ve never studied critical race theory, and I’ve never used it,” Jackson responded.
Cruz then said, “you gave a speech in April of 2015 at the University of Chicago in which you described the job you do as a judge.” Cruz then quoted part of her speech: “Sentencing is just plain interesting … because it melds together myriad types of law, criminal law, of course … constitutional law, critical race theory.”
Among those issues is also the controversial one of judicial philosophy, which appears to be a factor in some of the issues noted previously. Jackson appears to be an activist judge, not an originalist. Judicial activism is a dangerous thing for the law and for America.
What is judicial activism? “Judicial activism occurs when judges abandon their responsibility to interpret the Constitution and instead decide cases to advance their preferred policies,” according to the Britannica website.
The other side of that is the conservative, or originalist, philosophy. Originalism holds that the Constitution means what it meant when it was written and passed. If there are good reasons to change some things, it must be done through amendments, not by the actions of judges.
The 11th Chief Justice of the United States, from 1930 to 1941, Chief Justice Charles Evans Hughes, offered the idea that “the Constitution is what the judges say it is.”
This statement is absurd on its face. If words mean only what the reader thinks they mean, or what he or she wants them to mean, the world would turn upside-down.
The Framers of the Constitution carefully wrote that document to address important concepts. They are broad principles. They were not written based upon the minute details of that time, but intended to last into the future.
If the originalist interpretation leads to unpopular or undesirable things, then the Constitution can be properly amended, but not subjected to the whims of a judge, or a majority of five or more of the nine unelected justices.
Justice Clarence Thomas addressed this question in a 1996 speech. “The Constitution means not what the Court says it does but what the delegates at Philadelphia and at the state ratification conventions understood it to mean ... We as a nation adopted a written Constitution precisely because it has a fixed meaning that does not change. Otherwise we would have adopted the British approach of an unwritten, evolving constitution.”
Despite the fact that Judge Jackson’s supporters condemn how she was questioned, the questions were perfectly acceptable, and many even necessary in a confirmation hearing for such an important post.
Further, when compared to the horrid and disgraceful treatment by Democrat members of the Judiciary Committee during the confirmation hearings of Supreme Court nominees Brett Kavanaugh and Amy Coney Barrett, Jackson is getting respectful treatment.
And Justice Thomas was also treated contemptibly during his confirmation hearing. Part of his response to his disgusting treatment was, “it is a high-tech lynching for uppity blacks who in any way deign to think for themselves…”
We need justices and judges on the federal bench who understand and respect the broad and sensible principles stated in the Constitution and will adhere to them, rather than supplant them with personal or political ideals. Judge Jackson falls short of this standard.
However, in today’s highly political atmosphere, such ideals will not carry the day.
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