Justice Jackson

Today President Biden announced the nomination of Black female Ketanji Brown Jackson to serve on the Supreme Court.  I mention her color and gender not because I think it has any relevance whatsoever to her ability to be a good justice, but because color and gender were the overarching criteria for her selection.

Unlike other presidents who have desired to select a woman or a Black or a person of color for the Court but who opened the pool from which the nominee would be selected to persons of all color and sex, President Biden limited his selection pool to Black women.  This is not only a rejection of the Constitutional and legal guarantees of equality for all, but this denial of equal opportunity specifically based on race and sex is also blatant and illegal discrimination. 

Further, it is demeaning to this woman and to all Black women as it suggests that she and others of her race and sex could not have competed in an open selection pool; rather, that they needed a limited and less competitive pool in order to succeed.  Judge Jackson’s resume is strong educationally and experientially and I don’t understand why the President would not let her fully compete.  Nor do I fully understand why she would allow herself to be a part of this demeaning process designed more than anything to give the President the right to say he appointed the first Black woman to the Court.

In his announcement speech Biden said, “Our courts haven’t looked like America.”  Well, so what?  Since when is justice cosmetic?  (Answer: since the woke took over and everything becomes based on external identity characteristics). 

The law, and especially Constitutional law at its highest level, should not be based on superficial characteristics.  Those who decide the law need to be able to put aside their personal biases and backgrounds so as to objectively analyze the law and facts relevant to a particular case.  As more than one justice has stated, a good justice does not always like the outcome of his or her decisions.  That is because the law, when fully reasoned and applied objectively, sometimes does not give us an outcome that we personally like. 

Those who think it is important to have judges and justices who “look like America” assume that people who look a certain way will also decide a certain way.  They assume that judges/justices allow personal feelings and political biases to control their legal analysis.  Yet that is the very opposite of what a good judge/justice does.  The good judge/justice must and will remove such personal premises from their legal reasoning and decision making.

Which leads me to a troubling aspect of this specific nominee.  It has nothing to do with her color or gender but with the number of her opinions that have been overturned on appeal.  “Judge Jackson’s record of reversals by the left-leaning DC. Circuit is troubling for anyone concerned about the rule of law” said Judicial Crisis Network President Carrie Severino.

For example, in one case a D.C. Circuit panel composed of majority Democratic appointees concluded that that Judge Jackson had set aside a Trump administration rule when there was no legal basis to do so.   Another overturned case involved an ordered expansion of DHS’s definition regarding which non-citizens could be deported.  Another involved orders that related to the collective bargaining power of federal employees.  She also decided a 2019 battle in which she rejected Trump’s White House Counsel’s arguments that he held immunity from testifying to the House Judiciary Committee.  She wrote, in clear anti-Trump fashion, that “The primary takeaway from the past 250 years of recorded American history is that Presidents are not kings.” 

“Cases like these suggest that Jackson might be willing in politically charged cases to ignore the law to deliver a particular policy outcome, and that’s not what we want to see from a Supreme Court Justice,” Severino stated. 

While there are different schools of thought on how to interpret law, the Constitution, and precedent, those different approaches all ground themselves fully in legal reasoning that does not ignore the law in order to reach a desired conclusion.  Legitimate legal reasoning demands that conclusions be supported by the law, not by a rejection of it.

The Justices of the Supreme Court need to accept that they must be guided by the law.  Their role is not to institute popular opinions or to decide based on emotion rather than law.  Those whose desire is to rewrite and change the law should be running for Congress.  It is the legislature that makes the law.  While the Court’s decisions interpreting the law become a part of our legal system, this judicial law comes about via interpretation of existing law.  It is not about creation of new law.

I hope that during her confirmation hearings Judge Jackson will be fully and aggressively questioned about her ability to follow the law and to put her personal and political feelings and biases aside as she hears and decides cases.  Her answers to those questions should be the justification for her confirmation or failure to be confirmed.  Her color and gender should have nothing to do with it.