Focus on the Rule of Law

This coming week begin the confirmation hearings for Judge Jackson to become Justice Jackson of the Supreme Court.  I previously wrote two posts dealing with this specific SCOTUS nomination and the link to each is here:

               1.  Justice Jackson, 2/25/2022. CLICK HERE

               2,  Lady Justice, 1/22/2022. CLICK HERE

I reiterate the importance of the thoughts in both of those posts regarding the fact that this nomination was the first in modern times in which any number of well qualified individuals were excluded from consideration simply because of their race and sex.  

But that discriminatory criterion is what the President chose to use, and we have a nominee set for questioning.  At this point my main concern is that the questioning of this nominee will be rigorous.  Rigorous does not mean acrimonious but it does mean that the nominee must be held to account for past judicial activity and past statements or actions that may be relevant to her ability to serve as a fair and impartial justice on the highest court in the land.

Since she was nominated, I and others have had some time to look into those things.  It is clear that her personal beliefs and agenda are liberal.  That does not disqualify her unless (and this is a very big and important UNLESS) she is unable to set those personal views and agenda aside when asked to hear and decide cases coming before the Court.

Her past record would seem to make the answer to this question uncertain.  Many cases that she has decided appear to rely more on her personal beliefs of what should be the outcome and/or what the law should be rather than what the law is and might mandate.  I don’t know if that is because she is not capable or willing to be impartial or if it is because she lacks a clear understanding of the role of a judge and the legal principles underlying the application of law to the actual facts of a case.  

Sometimes the law mandates an outcome that a judge personally finds abhorrent.  But to allow the judge to change the mandates of the law based on his or her personal and emotional preferences would completely undermine our rule of law.

Which leads me to another point worth pursuing.  We are told that it is important to have a Black woman on the Court and especially this Black woman because her upbringing and life experiences are different.  If you buy into this, it is a great argument for packing the court with nearly as many justices as we have citizens of the United States.  Afterall, don’t each of us have different life experiences?  And within the identity groups to which Judge Jackson belongs and which are the primary criteria for which she was selected, there are many different life experiences and viewpoints. 

But none of that is relevant, because when a judge or justice puts on the black robes, he or she must put aside those personal experiences and feelings and opinions.  She or he must simply understand the facts of a particular case and the law that is relevant to that case and objectively apply that law to the facts to reach a reasonable and legally supportable opinion of what the result must be.

These are the questions that must be put to Nominee Jackson.  The Senate must be assured that she is capable of doing what a judge must do:  fairly decide a case based on law and fact and not on personal opinion and emotion, and most certainly not on what is currently most popular with society or with one or another political party.

This nominee must be pressed.  Her statements that she will be fair, that she understands how to apply law in rendering a judicial opinion must be questioned beyond and below the surface.  These are relevant and no one should get testy over such questions.

I fear that those questioning this nominee will be faced with calls of racism or sexism if their questions become too difficult.  That seems to be what happens if anyone questions a member of a specific identity group or the views and agenda of those supporting that individual.  But if the questions are relevant, even if tough and a bit aggressive, they must be allowed.  Afterall, the Democrats found it relevant to attack a nominee based on false allegations about his high school behavior; certainly they should not oppose questions dealing with this nominee’s adult professional activity and her legal and judicial performance to date.  Those questioning Judge Jackson must not be deterred.

In the end, the filling of this position with an avowed liberal, even if her legal reasoning turns out to be less than stellar, will not make a lot of difference in the outcome of cases.  She will be replacing a solid liberal vote on the Court, and every Justice gets just one vote.

The damage will be not to the specific case outcomes, but to the long term credibility of the Court and with that comes damage to the justice system and our rule of law.  But that damage has to large extent already been done by Biden in using discriminatory and exclusionary criteria to select this nominee.