Ketanji Brown Jackson, Biden's Supreme Court pick, reveals a lot with questions she won't answer

Supreme Court nominee fails to express judicial philosophy: Bream

Fox News chief legal correspondent reports the pressure Supreme Court nominee Ketanji Brown Jackson is facing to define her judicial philosophy on ‘Special Report.’

Senate Judiciary Committee Democrats incessantly remind us that the historic milestone marked by Judge Ketanji Brown Jackson’s nomination is that she would become the Supreme Court’s first Black woman.

Yet, how historically significant can it be if she can’t say what a woman is?

For all her appeal – and in 12 grueling hours of testimony on Tuesday, Judge Jackson’s intellect and charm were on full display – the nominee is dodgy. Though a highly accomplished – indeed, a historic – woman, she testified that she can’t “provide a definition” of what a woman is.

Sen. Marsha Blackburn, R-Tenn., even tried to help, spoon-feeding her the wisdom of an iconic progressive, the late Justice Ruth Bader Ginsburg, that “physical differences between men and women … are enduring. The two sexes are not fungible.” But Jackson was unmoved – if there is a difference between men and women, she’s claims she is unable to discern it.

See what seven years at Harvard can do for you!

Supreme Court nominee Ketanji Brown Jackson testifies during her Senate Judiciary Committee confirmation hearing on Capitol Hill, Tuesday, March 22, 2022.
(AP Photo/Andrew Harnik)

Of course, it is not that someone as erudite and sophisticated as Judge Jackson can’t tell us the answer. It is that she won’t.

At times during the hearing, she has put on her best constitutional originalist hat. It was almost like we were listening to the late, great Justice Antonin Scalia himself.

But it’s a pose. Jackson bobs and weaves, demonstrating that she is well versed in constitutional originalism and statutory textualism – the judicial philosophy that judges must apply the law as written, consistent with its public meaning at the time it was adopted, not make it up as they go along. But Jackson has been careful just to describe this philosophy, not to adopt it as her own.

Just as she can’t say what a woman is despite having been one for 51 years, Jackson claims not to have formed a judicial philosophy she can describe for us, even after a decade as a judge – one who now serves on one of the most prestigious appellate courts in the nation, and is poised to accede to one even more consequential.

Of course, Jackson is well aware that the vital inquiry in assessing her nomination centers on her judicial philosophy – what she would actually do on the Supreme Court, where she would not be constrained by higher courts. So she has come to the hearing with a go-to dodge: Whenever senators ask about “philosophy,” she pivots to “methodology.” 

Her method, she airily insists, ensures that she decides the case based solely on the law, not her personal policy preferences. Sounds great … except the whole point of the hearing is to get a read on how she decides what the law is

That is another critical question that she won’t answer. But it is inconceivable that she doesn’t have an answer. 

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    Supreme Court nominee Ketanji Brown Jackson smiles during her confirmation hearing in Washington, Tuesday, March 22, 2022.  (AP Photo/Andrew Harnik)

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    Supreme Court nominee Ketanji Brown Jackson arrives for her Senate Judiciary Committee confirmation hearing, Tuesday, March 22, 2022.  (AP Photo/Andrew Harnik)

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    Supreme Court nominee Ketanji Brown Jackson speaks during her confirmation hearing, Tuesday, March 22, 2022.  (AP Photo/Evan Vucci)

She is not sharing it because she is smart and grasps that we wouldn’t like the answer very much. She calculates that she has the votes and if she just toughs it out, without revealing anything too alarming, she will be confirmed.

Understand: a confirmation hearing is not a contract. While it may give us a sense of comfort to hear Judge Jackson acknowledge the pertinence of constitutional originalism, and to profess that it is essential for a judge to “stay in her lane” (i.e., to merely apply the law, not create radical new law), no guarantee she appears to give is enforceable. Jackson may sound like Scalia this week, but when she takes her seat on the high court and starts voting as a reliable progressive, there will be no recourse.

We can’t say we weren’t warned: Much more than the catnip she has served up in much of her testimony, we learn what we need to know from the questions Judge Jackson won’t answer.

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