Supreme Court Senate hearings – nominee Ketanji Brown Jackson should answer fair questions

With Judge Ketanji Brown Jackson’s nomination hearings for the Supreme Court set to start Monday before the Senate Judiciary Committee, what should we expect? We know the basic framework of hearings week that has become customary for recent nominations – four days, with the first dedicated to opening statements, the next two to questioning the nominee, and a typically anticlimactic final day in which outside witnesses weigh in on the nomination. 

We can start with a few things that will not happen: We will not see crimson-clad handmaids lurking around the Capitol.  

We will not see senators of the minority party interrupting the first day of hearings 63 times before lunch, as happened with Brett Kavanaugh in 2018.  

BIDEN SUPREME COURT NOMINEE – AMERICANS DESERVE ANSWERS FROM KETANJI BROWN JACKSON

We will not see a continuous parade of screaming protesters disrupting the hearings. (Over 200 protesters were arrested in 2018.) 

We will not see stunts like senators filling their empty seats with pictures, as Democrats did during the committee vote for Amy Coney Barrett’s nomination in 2020. 

We will not see the U.S. Senate become a stage for baseless character attacks such as those that made the hearings for Clarence Thomas and Kavanaugh a national disgrace. 

We also likely will not see Sen. Sheldon Whitehouse, D-R.I., pulling out any of his crazy conspiracy theory charts to illustrate the vast array of Judge Jackson’s left-wing dark money backers, who spent over $1 billion to elect President Biden and Senate Democrats, then worked hard to create this vacancy for her, and then in lockstep immediately praised her nomination with intense expressions of support. 

It will speak volumes to see whether Jackson is willing to disavow any of the extreme voices that have come to define the modern Left.

In short, we should not expect the hearings to become a circus. Instead, we can expect Republican senators to ask probing questions about Jackson’s view of the Constitution – which should be interesting, because during her nomination for the D.C. Circuit just last year, she stated that she did "not have a judicial philosophy per se." 

Judicial nominees routinely refuse to answer questions about issues that may come before the court, so expect a lot of evasion on specific legal issues from Judge Jackson. Questions about a general approach to constitutional interpretation, however, are not in that category. 

President Trump’s nominees to the federal bench routinely answered such questions. Their answers consistently distinguished law from policy preferences, emphasized the importance of adherence to text, valued the original public meaning of such text, and expressed the primacy of the rule of law.  

Of course, the Left has a very different view of the role of courts. They see the federal judiciary’s life-tenured judges as the ideal outlet to impose policy preferences, many of which would not carry a vote in Congress or in most state legislatures, where those making decisions are accountable to the people.  

Of course, Democratic nominees to the bench are not expected to articulate a judge-aggrandizing vision of government. They want to be confirmed, after all. It is telling that they often use the same rhetoric conservative nominees do, which is a testament to the power of textualism and originalism. But the reality tends to play out very differently once they are on the bench. 

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Jackson might employ similar rhetoric in response to philosophical questions, or she might opt to be evasive, as she was during her nomination last year. But do not expect Republican senators to let her off the hook about her record. From her strident advocacy on behalf of terrorists and pro-abortion organizations to her softness on crime, hostility to business and workers, and reversed decisions against the Trump administration, she is just what the Left’s judicial activists are looking for. 

Ideologically, Jackson is widely considered to be to the left of the justice she would be replacing, Stephen Breyer. The court’s oldest sitting justice is certainly a member of the liberal bloc, but he has been known to seek compromise and even join his conservative colleagues in a number of noteworthy cases.  

He also expressed his opposition to packing the court, which has become a priority of court-focused dark-money groups on the Left. For that matter, the late Justice Ruth Bader Ginsburg was also public about her opposition to court-packing. A question on that topic from senators would be well within the bounds of a matter a judicial nominee could be expected to address.  

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The same is true of accompanying threats against the court that have come from senators, including Whitehouse and Majority Leader Chuck Schumer, D-N.Y., of the dire consequences if the federal judiciary does not do their bidding. That subject would also be fair game for the hearings.  

It will speak volumes to see whether Jackson is willing to disavow any of the extreme voices that have come to define the modern Left.

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