Blame, Excuses, and Ignorance

I have been watching the confirmation hearing of Judge Jackson to become Justice Jackson and I am very troubled.  If this is the best that this country can put forward to sit on the highest court in the land, then this country is in deep trouble.

Thus far what I see from Judge Jackson is an understanding of Constitutional law that is not much better than that of an average second year law student, an inability to take responsibility for her actions, both as a lower court judge and in other aspects of her legal career combined with a keen ability to make excuses and blame others.

I realize we have another day or more of hearings, but at the moment I am not convinced that Judge Jackson should be confirmed; indeed, I hope that her confirmation fails.

Methodology is not Philosophy

Judicial philosophy is an important aspect of determining the suitability of a Justice to the Supreme Court.  That philosophy incorporates a multitude of aspects of the Constitution and Constitutional law as well as an understanding of our form of government and its checks and balances.

Although sometimes referred to by the terms liberal and conservative, judicial philosophies are not necessarily affiliated with liberal or conservative political views.  Instead, they reflect an approach to how one interprets and applies the constitution and existing law to a case under consideration.  Basically, philosophies will be based either in an attempt to construe what is unclear in a way that is usually limited and consistent with the intent of the framers or in a view that is more likely to see the constitution as a sort of living document to which rights and responsibilities not specifically referred to in the document can nonetheless be discovered by the Court.

Most law students in required and perhaps additional elective Constitutional Law classes will study these philosophies in addition to the Constitution itself and the law it has generated.  Students will become familiar with the philosophies of the current as well as past Justices and learn to understand how a different philosophy will direct a different conclusion and result in a case, both past and hypothetically in the future.

Methodology is how one goes about using their judicial philosophy.  It is the method not the underlying guiding principle.  The method will generally be the same regardless of the underlying philosophy:  understand the facts of a case, understand the relevant law including what aspects of that law are settled and what aspects are open to interpretation.  If an interpretation is required, go to accepted and/or required rules of interpretation as well as use your judicial philosophy to apply and interpret.

Judge Jackson does not have a judicial philosophy.  She has a methodology:  look at the facts and apply the law consistent with the Constitution.  That may sound good in passing, but the devil is in the details. That phrase “consistent with the Constitution” will be controlled by one’s judicial philosophy, something that Jackson says she doesn’t have but perhaps something which she is not willing to (or her handlers have told her not to) disclose.

When asked what Justice, current or past, she saw as a good model she could name no one; she was not familiar with what their judicial philosophy is or was – not even Justice Breyer for whom she clerked. 

I have to conclude that Judge Jackson does not understand what a judicial philosophy is, let alone what hers might be.  As a trial judge that doesn’t matter so much because she is not sitting on the highest Court in the land deciding cases that affect our very democracy but is instead deciding cases for which the law is well settled and simply needs to be applied to facts proven at trial.  And improper decisions will be fixed on appeal.  Even as an appellate Judge she still is not deciding cases of the magnitude of those faced by the Justices of the Supreme Court.

Law vs. Policy

Judge Jackson’s lack of a clear philosophy is dangerous.  First, it reflects what is becoming a clearly apparent lack of understanding of the Constitution and a lack of familiarity and/or understanding of Constitutional law.  (I really don’t understand why those who prepared her did not address her obvious ignorance in this area and ask her to hit the books and study before her hearing began.) 

Or perhaps she really doesn’t understand the difference between law and policy – a key difference that separates the political and policy branches (Congress and Executive) from the Judicial branch.  The policy branches are elected and thus the policy reflects the voice of the people.  The Judicial branch is not a policy branch specifically so that policy is of the people and not a fiat by 5 (majority) justices. 

The judicial branch is about the law.  Someone who sits on the Supreme Court needs to understand that and needs to have a better understanding of Constitutional law than this nominee has demonstrated to date. 

The law does not care about what the Court looks like.  I was particularly offended by the testimony during Sen. Feinstein’s questioning this morning that if confirmed Justice Jackson will be a role model for little Black girls.  It is not the job of the court to be a role model just as it is not the job of the court to make policy.  It is the job of the Court and therefore of the Justices to be faithful to the law and the Constitution.  And if they are role models too, then they should want to be role models to all children, not just those of one race or gender.

Accountability

The Supreme Court is the Court of last resort.  The buck stops there. The Justices must know what they are doing; they will have no one but themselves to blame for their decisions.  Which is why Judge Jackson’s seeming inability to take responsibility for her District and Circuit Court opinions is troubling.

Of course, like any trial Judge, Judge Jackson must follow existing law.  But beyond that, she seems to not want to take responsibility for anything.  When asked about an Amicus Brief she wrote and signed, she said she was just doing as told by those who hired her.  (An amicus brief is not written on behalf of a client in the case before the court in which the brief is filed; rather it generally advocates for a particular outcome, often based on policy, hoping to persuade the court to which it is addressed to decide in a particular way.) 

While an attorney is in a way nothing more than a hired gun, when an attorney signs his or her name to a document, under court rules that attorney is certifying, among other things, “the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law” and that “the factual contentions have evidentiary support.”  Most attorneys take very seriously the act of placing their signature on a pleading or other legal document.  At a minimum they will have carefully read and understood the document before signing.  Thus, I was quite surprised when Judge Jackson was completely unable to discuss allegations in an amicus brief she had authored and signed.

When asked about her sentencing as a trial judge, especially in regard to pornography cases, Judge Jackson blames her consistently low sentences (well below sentencing guidelines and prosecutorial requests) on Congress for not making guidelines mandatory or clear. 

She excuses statements in a law review article she wrote by saying she was just a law student then.  She seems not to understand that a Law Review Note, while presenting current law, also presents an analysis and conclusions of the author about that law.  When faced with similar statements made by her  as Judge on the record in a recent sentencing hearing, she can’t comment because she doesn’t have the record in front of her.  These statements involved her seeming view that society and the law are too harsh on pornographers; one would think she could explain that even without a record in front of her. 

General Legal Knowledge (or lack thereof)

But then so many things that Judge Jackson was asked about she either didn’t understand or clearly had never even heard about until the Senator asking the question explained it to her.  That is frightening.

In my opinion, from what I have seen thus far, Judge Jackson may be an adequate lower court judge, but she is not ready for the Supreme Court.  Maybe one day she will be, but today is not the day.    She is charming and has a fairly good understanding of the role of a trial judge, but that is not enough.   She lacks a solid grasp of the law and legal concepts that are crucial to understanding cases that come before the Supreme Court.   

On the highest court in the land I expect to see the highest, most stellar legal minds.  I do not see that here.

This nominee seems to think that she would skate through this hearing as the first Black Female to be nominated.  Her supporters do seem to imply that she should be confirmed on that fact alone, so perhaps she believes the confirmation is assured.  I hope that is not the case.  Not only because it would be destructive to the Court, but because it would also not create a role model but rather an embarrassment to those “little Black girls” that she and her supporters think they are championing. (For another time is a comment on the hypocrisy of Democrats making a big deal out of this “first” when they, including then Sen. Biden, filibustered and voted against other Black female judicial nominees when they were conservatives). 

I hope that the Senate will not confirm this nominee.  I hope that the President will then look at qualified candidates, not just those who meet a particular race or gender requirement and pick a truly stellar legal mind for the Court.   If that person happens to be Black, all the better, but reducing candidates to the color of their skin is wrong on so many levels.   Picking a nominee based on the content of their character and qualifications, not just as a “first”, is what can truly make everyone in this country proud.  And for those who care about our fragile democracy, it is the best way to preserve and protect its greatness.

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.

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.