In her Supreme Court confirmation hearings this week, the judge will draw on her earlier experiences and those of her predecessors.
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Judge Ketanji Brown Jackson knows how to demonstrate mastery of legal materials while avoiding expressing even a hint of an opinion about them.
WASHINGTON — Judge Ketanji Brown Jackson, President Biden’s Supreme Court pick, knows her way around Senate confirmation hearings. She has successfully navigated three of them, the most recent one less than a year ago. When members of the Senate Judiciary Committee question her this week, they will be facing a seasoned pro.
Based on her smooth performance in April in connection with her nomination to the U.S. Court of Appeals for the District of Columbia Circuit, Judge Jackson has mastered the playbook. She knows how to be cordial and noncommittal, to demonstrate mastery of legal materials while avoiding expressing even a hint of an opinion about them.
She has also demonstrated a nimble ability to reframe questions. Last year, for instance, Senator Ted Cruz, Republican of Texas, invited her to take sides in the debate over whether the meaning of the Constitution was fixed when it was adopted and ratified.
“Do you believe we have a living Constitution?” he asked.
“I believe,” she responded, “that the Constitution is an enduring document.”
She was also gracious and capable at hearings on her nominations to the U.S. Sentencing Commission in 2009 and to the Federal District Court in Washington in 2012. She was confirmed to the first two positions by voice vote and to the appeals court by a vote of 53 to 44, with three Republicans supporting her nomination.
In getting ready for this week’s hearings, Judge Jackson has doubtless studied the lessons distilled by her predecessors.
More than 40 years ago, for instance, when Sandra Day O’Connor, then an Arizona judge, was preparing for her own Supreme Court confirmation hearings, she was given sound advice by a 26-year-old Justice Department lawyer assigned to help her. In a report to a superior after Justice O’Connor became the first female member of the court, the lawyer sketched out his advice.
“The approach was to avoid giving specific responses to any direct questions on legal issues likely to come before the court,” he wrote, “but demonstrating in the response a firm command of the subject area and awareness of the relevant precedents and arguments.”
The lawyer was John G. Roberts Jr., and he faithfully followed his advice at his own confirmation hearings in 2005. Senator Richard J. Durbin, Democrat of Illinois, who is now the chairman of the Judiciary Committee, said Chief Justice Roberts’s performance had “retired the trophy.”
In a 1995 book review, Justice Elena Kagan, then a 35-year-old law professor at the University of Chicago, said the successful nominee must execute a confident two-step. “The safest and surest route to the prize,” she wrote, “lay in alternating platitudinous statement and judicious silence.”
The review described the tactics of Justice Ruth Bader Ginsburg, who had faced the committee two years before. “Justice Ginsburg’s favored technique took the form of a pincer movement,” Justice Kagan wrote.
ImageRuth Bader Ginsburg on the first day of her Senate confirmation hearings in 1993.Credit…Paul Hosefros/The New York Times
Justice Ginsburg refused to answer questions that were too specific, saying that could forecast a possible ruling. And she likewise declined to answer questions that were too general, saying that judges should not opine on hypothetical abstractions.
“Some room may have remained in theory between these two responses; perhaps a senator could learn something about Justice Ginsburg’s legal views if he pitched his question at precisely the right level of generality,” Justice Kagan wrote. “But in practice, the potential gap closed to a sliver given Ginsburg’s understanding of what counted as ‘too specific’ (roughly, anything that might have some bearing on a case that might some day come before the court) and what counted as ‘too general’ (roughly, anything else worthy of mention).”
In 2010, in a performance that rivaled that of Chief Justice Roberts, Justice Kagan, too, followed the standard playbook she had described.
Last year, at her appeals court confirmation hearing, so did Judge Jackson.
ImageJudge Jackson last year at her appeals court confirmation hearing.Credit…Pool photo by Kevin Lamarque
Asked about proposals to expand the size of the Supreme Court, she said, “I don’t think it’s appropriate for me to comment on the structure or the size of the court any more than it would be for me to comment on the court’s rulings.”
About the scope of presidential power: “I’m unfortunately not going to be able to engage in a hypothetical discussion.”
Like other nominees, Judge Jackson described the job of judging as mechanical. She considers, she said, “three inputs” — the parties’ arguments, the facts in the record and the applicable law. She added that she did not follow any particular judicial philosophy.
“Not really a philosophy, more of a methodology,” she said. “It is the idea that it is only appropriate for the judge to take into account the arguments of the parties, the facts in the case and the law that applies in every case.”
“I’m not injecting my personal views,” she added. “I’m looking at those three things.”
But she twice quoted a famous aphorism by Oliver Wendell Holmes Jr. from his 1881 book “The Common Law,” written two decades before he joined the Supreme Court. “The life of the law has not been logic: It has been experience,” Holmes wrote. Judge Jackson cited the statement, it seemed, to suggest that judges of diverse backgrounds bring something valuable if indefinable to their courts.
But Holmes meant something more pointed.
Holmes’s statement is “often quoted but rarely understood,” Frederick Schauer wrote in The Harvard Law Review in 2017. It was, Professor Schauer wrote, part of a critique of two aspects of the sort of formalism Judge Jackson seemed to have embraced.
“One was the idea that legal decision making involved mechanical deduction from existing legal premises,” Professor Schauer wrote. “And the other was that the domain of law was limited to a collection of more or less conventional legal sources — statutes, reported cases, constitutional text, ordinances, codified administrative regulations and perhaps some especially authoritative treatises.”
When she is questioned this week, Judge Jackson is likely to assert again that her judicial work is a sort of algorithm, with three inputs yielding a predictable output. Holmes took a different view.
“The law embodies the story of a nation’s development through many centuries,” he wrote, “and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.”
Source: nytimes.com
