Who Really is Ketanji Brown Jackson?
S E E D E D C O N T E N T
Below is my column in the Hill on the nomination of Judge Ketanji Brown Jackson. What is most notable of the statements of support for Judge Jackson is how little is said about her judicial philosophy or approach to the law. The fact is that we have a comparably thin record of opinions in comparison to recent nominees. The question is whether we will learn substantially more in this confirmation.
Here is the column:
For many liberal groups, Judge Ketanji Brown Jackson is a supreme "deliverable" by President Biden. Activist groups have pushed her nomination to the Supreme Court while opposing the consideration of fellow short-lister District Judge J. Michelle Childs. These groups clearly did not like Childs and her more moderate take on legal issues. Yet the interesting question is, what did they see in Judge Jackson that made her the preferred choice? It seems to be widely understood but barely discussed.
Jackson received a rather unenviable start to her nomination. Without any real pressure on timing, the White House announced its selection of the D.C. circuit judge even as Ukrainians were fighting street by street for their freedom. The "now for something completely different" moment was quickly overshadowed by images of the agony abroad.
That decision follows Biden's unnecessary, unprecedented pledge to consider only Black females for a vacancy on the court — the very type of threshold criteria that the court has declared unconstitutional or unlawful for schools or businesses. (Jackson herself previously rejected Biden's premise for imposing his threshold racial and gender exclusion, stating during her appellate confirmation hearing that "I don't think that race plays a role in the kind of judge that I have been and would be.")
With a sterling academic and professional resume, she deserved a much better framing and timing for her nomination.
Jackson always has been the front-runner in this process. Activist groups such as Demand Justice, which has led efforts to pack the court and to hound Justice Stephen Breyer into retiring, pushed her nomination while opposing Judge Childs, whom they considered too moderate and tough on crime. This concerted opposition campaign, which included the Our Revolution group aligned with Sen. Bernie Sanders (I-Vt.), painted Childs as anti-union and pro-employer too.
While these advocates and others all agreed that Jackson was the best choice, they have not explained clearly why. NBC News declared that "Jackson fits well with the Democratic Party and the progressive movement's agenda." Yet the confirmation process is designed to guarantee that we do not have wink-and-a-nod nominations where agendas are to be fulfilled but not discussed.
Jackson has an extremely limited written record to review — something considered an advantage for a nominee. Most of her district court opinions are not very illustrative of her views or approach to the law. She did write several very long opinions as a district court judge but has only one published opinion as an appellate judge. That opinion, a win for unions against a federal agency, was released roughly 24 hours before her nomination. She has remarkably little else written beyond these limited opinions.
Liberals want a justice who is willing to expand the meaning of the Constitution without constitutional amendments. President Biden stressed that his nominee must follow a "living constitution" approach, including a broad view of "unenumerated rights." When asked if she supported such an approach, Childs answered "no." Jackson, in contrast, has been far more obscure and conflicted in her response.
When she was nominated for the district court, Jackson answered "no" to that question. However, when nominated for the appellate court (and widely discussed as a future Supreme Court nominee), she became more evasive and, frankly, baffling in her answer: She told the Senate that she simply did not have experience with such interpretations as a judge.
It was a bizarre response since the question concerned her judicial philosophy. After all, Jackson has a distinguished academic background and a long career in legal practice. She is clearly familiar with this core concept of liberal constitutional interpretation. (Her answer reminded some of us of when Justice Clarence Thomas testified that he really had not thought much about Roe v. Wade.)
Her answer also made little sense since she had no difficulty responding to the question in her prior confirmation. When again pressed on the issue, Jackson's position became unintelligible. She told the Senate that she is "bound by the methods of constitutional interpretation that the Supreme Court has adopted, and I have a duty not to opine on the Supreme Court's chosen methodology or suggest that I would undertake to interpret the text of the Constitution in any manner other than as the Supreme Court has directed."
That answer was mystifying. She is bound to follow the precedents of the Supreme Court — but she is allowed to have her own philosophy on constitutional interpretation, and other judges have answered the same question. Indeed, past nominees have gone into some detail on their approaches to interpreting the Constitution while avoiding how they would rule on particular cases. Justice Amy Coney Barrett not only refuted the premise of the living constitution theory but expressly embraced an originalist interpretative approach.
What is known is that Jackson has faced pushback for exceeding her constitutionally or statutorily defined role in cases.
For example, in 2019, she wrote a lengthy opinion in Make the Road New York v. McAleenan in favor of immigration groups challenging the Department of Homeland Security's expansion of the expedited-removal process to the statutory limit. Jackson surprisingly ruled that she had authority to enjoin the policy despite a federal law stating the question was left to the "sole and unreviewable discretion" of the agency. The D.C. Circuit reversed Judge Jackson as exercising considerable judicial overreach. The lone judge in dissent did not find in Jackson's favor but instead cited her for a different error in exercising jurisdiction over the challenge.
Judge Jackson also was accused of judicial overreach in American Federation of Government Employees v. Trump in 2018, when she stopped the Trump administration from implementing provisions limiting the ability of federal workers' unions to collectively bargain. Noting that Jackson was a prospective choice for the Supreme Court, The Washington Post heralded the ruling as a major victory for unions. However, a unanimous ruling by the D.C. Circuit held that Jackson lacked jurisdiction to decide the case because the statute clearly mandates such challenges must be brought first in the agency process and that judicial review is then available in the courts of appeals.
Those reversals evidence a more fluid approach to statutory interpretation that even more liberal judges found to be beyond the pale.
While confirmation hearings often are reduced to little more than political kabuki theatre, Jackson's hearing will be far more important because of the lack of information about her views on key issues. She has a fraction of the written record of nominees such as Barrett or Justice Neil Gorsuch. In the end, Judge Jackson is likely to be confirmed. But her confirmation should be based on advice and consent, not a wink and a nod.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.
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Republican Senators have indicated that there will not be any major battle over her nomination. She replaces another liberal justice and it's too close to the midterm elections to give the democrats anything to use, now that the GOP has such a strong wind at their backs.
Ohhhh - can we reach here, eh?
The truth is a reach?
Absolutely...
How the Federalist Society came to dominate the Supreme Court – Harvard Gazette
Federalist Society Exposed As A Hotbed Of Anti-Democracy Insurrectionists (politicususa.com)
I didn't know that little tidbit.
When did Trump say he would only pick members of the federalist society? Also, can you point out the law that says you can't discriminate against people based on their membership of lack thereof in a legal society ? The federalist society unlike Joe Biden, doesn't discriminate on the basis of race and gender.
Keep looking out your ivory tower.
Pot calling kettle black - PoliticusUSA offers news, commentary, and opinion from a liberal point of view.
Yup - that's what I'd want - a "liberal" organization discussing a "conservative" organization.
Certainly no bias there.
And, they're supported by another liberal bastion Harvard?
Thanks for pointing out what was obviously missed.
Gorsuch - Kavanaugh - Barrett - Trump's nominees.
So, what's the issue with traditionalist being nominated for SCOTUS?
Keep ignoring the obvious.
It is humorous to watch, lol.
Yeah, I do hope the GOP doesn't resort to the Democrats' sordid tactics and delve into her freaking high school days. Maybe someone wrote in CODE in her yearbook or something! Maybe she (GASP!!!!!) attended parties!
The Republicans, at least the most nationally visible ones, are bigots, dumbasses, and buffoons. I give you Marjorie Taylor Greene , Matt Gaetz, Jim Jordan, Mike Lindell, and others, who were recognized as "great Americans" by name by Trump during his speech.
Please keep these scumbags in the forefront..
Yea there are some dumbasses in the republican party. Not all you mentioned are, but a couple are.
However, democrats have Biden, Camel, AOC, Tlaib, Omar, Pressley, etc, etc, etc..
All of which have some or much ability to inflict damage to this country.
Hope you are happy with the fuck ups in the White House,
Do you realize what article you are posting on??
WHAT THE FUCK DOES Trump or any Republicans have to do with this??????
Here is your gold star for once again derailing!
When you spend all of your time fixated on something, everything you come across starts to look like that thing.
This caught my eye, and it should catch everyone else's. This is leagues different than a strict textualist vs. liberal jurisprudence deal. However, this is how far afield a jurist can find themselves, once they start allowing anything other than the text to influence the decision. Jurisdiction is the first issue, and apparently the issue was raised and argued in the district court.
Yes, the Federal Labor Relations Authority is potentially helpful at best, but the district court judge is the end all-be all of federal labor relations. s/
This is forum shopping. These guys know that you need to exhaust your administrative remedies first, but they went instead to the district court. Judge Jackson knows the requirements for administrative law challenges. Regardless, she was apparently briefed on the issue here. If she had a question, she could have certified it to the DC Circuit. She did not, but instead went out of her way to justify the jurisdiction of the district court. That's a dangerous jurist, IMO.
It's called Judicial discretion, and on appeal if wrong should be slapped down by the appellate courts...
Clearly usurping jurisdiction, this is the danger of having political courts who see their duty as advancing an agenda rather than serving the law...
I'm not following you here. Jurisdiction of the district court is not discretionary. Consolidating cases, ordering sentences to run concurrently or consecutively, taking the recommendations of the DA's or AG's office...discretionary. Jurisdiction is not left to the discretion of the district courts though. If we ever end up at that point, then the integrity of the judicial system would really be in shambles.
I agree here.
It's simple, in the cases mentioned, Jackson decided for herself that she had judicial discretion to do what she did when clearly she did not, that's why the circuit Court bitch slapped her... Hence my declaration on political courts... It wasn't an issue of jurisdiction that caused the issue, it was an issue of the actual power of the district judge when sitting on the bench... Both cases represent her willingness to reach out beyond her clearly defined judicial limitations to aid a political cause...
It won't matter with her on the USSC, on the high court she can reach anywhere she wants to precedent be damned... Which is why the liberals and progressive's picked her... And which is why for the same reasons Bork wasn't confirmed she shouldn't be either...
Um, NWM, judicial discretion is not the same as jurisdiction.
FAIL.
Of course, you wouldn't even begin to get it... Completely misstate why both cases were reversed on appeal and sent back to the trial court...
The trial judge completely abused her discretion in ruling the way she did, when she should have applied the actual law as dictated by precedent...
I guess you didn't read either case did you..
Of course, I didn't say a fucking word about ANY cases NWM.
So take your strawmen fallacies elsewhere.
Really? so then it's just a blank attack at the point, or god forbid at the person making the point... Sorry, you do not understand the law...
But, thank you for illustrating it... Since you have nothing but vitriol... That seems to be all you ever have, never anything factual or constructive...
Nothing but disruptive deflection... {chuckle}
{Chuckle}
Are you accusing her of being your biggest fan?
/s
She's runnin' a close second... /s
{Chuckle}
Nope, it's a factual statement about the term that you are using improperly to try and bolster your agenda.
I understand the DEFINITION of legal terms NWM and recognize when they are being abused in an ideological way.
Wow, that's a lot of whiny bullshit about ONE factual statement.
Judicial discretion is NOT the same as Jurisdiction. THAT is factual NWM.
I note that instead of addressing that fact, you chose to make a personal comment.
First of all point out where I said they are one and the same...
Cause you can't And since you can't do this, EVERYTHING your claiming is lying bullshit... A personal attack cause you have nothing but personal attacks...
You can note whatever the fuck you wanna note, your making it personal without any basis... Just because you want to or think you can...
Go for it...
It's simple NWM. Rex spoke about jurisdiction, you insisted that 'It is called judicial discretion.
Then you doubled down on it. It's a recurring MO in your comments, inserting unrelated terms and all too often, redefining even the terms you choose.
IF you think I posted 'personal attacks', you should flag them and refrain from replying per the CoC.
Since you replied, I'll take that as an admission that you've chosen to drop a victim card.
Right, I was talking about what Jackson actually did which which caused the appeals court to overturn her... She used her "Judicial Discretion" to rule the way she wanted to against the proper delineation of jurisdiction... T Rex inquired about and I explained myself...
But here's the rub YOU ignore all that and claim I'm wrong cause YOU couldn't follow the conversation, and YOUR simpleton explanation of your claim PROVES YOU COULDN'T FOLLOW IT...
So on that basis, thank you for proving what many of us know already.... No victim here, you chose to attack my statements in a very childish manner when you couldn't even follow the conversation or god forbid ignored the rest of the conversation.. (most likely reason)
Game, Set, Match...
Have a nice day...
I wish I had caught up with this comment when it was posted. I could have used the belly laugh back then.
Really? to what? admitting that you couldn't follow the conversation or admitting that you were just trying to insult someone and came up short?
Either way you lost,,,
And that is hilarious... But typical..
Rinsing and repeating the same bullshit doesn't make it any truer NWM.
This thread, that you want to pretend I can't follow, was begun by Rex who provided us with a link to the Appeals court ruling.
Now YOU keep claiming, as you do again in above comment, that what caused the Appeals court to overturn Jackson was her use of 'Judicial Discretion' and insist that ' 'Judicial Discretion'' is the one and only term that properly describes Jackson's action.
Logic therefore will bring us to presume that the Appeals court cited Jackson's use of 'Judicial Discretion' in its ruling.
Yet ANY member here can review the Appeals court ruling provided in the link and see for themselves that the term ''Judicial Discretion' was NEVER mentioned in the Appeals Court ruling.
In short, your claim is BULLSHIT.
WHY you hang your hat on utter BULLSHIT is something only you can explain.
As I stated before, you have a practice of interjecting your own terms and insisting that they become the predicate of further discussion. In this case, the linked ruling provides ample evidence that you just pulled the term 'Judicial Discretion' out of your nether regions.
Game, set, match.
She doesn't seem to grasp the concept of precedent as lower court judge and certainly has never been accused of crisp, clear writing.
One thing can be said about Ketanji Brown is..........She won't take away the birth control. And many other rights either.
Neither has any SCOTUS members.
Wow, that sure is a ringing endorsement!
Just like all current SCOTUS justices.
Seriously. WTF.
Amy Coney Barrett = 35 months TOTAL on the bench. Turley et al cheer her nomination.
Ketanji Brown Jackson = over 8 YEARS on the bench and over 500 written opinions yet Turley claims to "have a comparably thin record of opinions in comparison…"
Question for Turley: In comparison to whom you putz?
Chief Justice Roberts had 2 years on the bench with 49 written opinions. Using Turley argument he doesn't seem to be qualified.
Considering the overall performance of 'The Roberts Court' it could be argued that he is not qualified either.
Just announced that she will begin her confirmation hearing will begin on March 21st.
While I have some reservations based on some previous judgements being overturned by higher courts, unless there is something in her background that turns a Democrat away she will probably be confirmed. The process is set up to allow the sitting President to nominate whoever he/she likes....
And while the Republicans are on record saying they won't attack the same way the Democrats did during the Kavanaugh hearings, the hearings haven't started yet. I can only hope they hold true to their words. The type of attacks that were unleashed were completely beneath the dignity of the U.S. Senate and those who were involved should really be ashamed of themselves. Unfortunately I'm confident they don't recognize that their actions were in any fashion wrong.
Sure "Jonathan" and would you care to refrain from making gratuitous and irrelevant remarks like this? Why is your opinion essential at this point anyway? (It is not.) The SCOTUS process is a constitutional matter, the candidate timing is not a matter for a constitutional scholar! So why are you speaking (again)?
Damn, I don't know if I can get through this article without vomiting. Jonathan Turley is clearly not a non-partisan and I am only partially through it! What Turley seems to be suggesting is there is a better 'method' to the game of selection and not the quality of appointee!
Eureka! There is the rub. Some conservatives do not want the constitution to EVER be in position to change (add amendments) again. It is clear they see themselves denoted in the constitution's original version (even before any additional amendments going beyond the first 10 (Bill of Rights). They will simply "tamp down" or stifle any (progressive) changes to the constitution by not convening or red-state "no" votes. In the meantime, their goal is not to allow the perception that the constitution is a "living" document subject to 21st century interpretation.
Finally, Jonathan Turley is allowing his true 'colors' to fly free and with expression.
That conservatives believe the Constitution has meaning isn't a secret.
Please, our Constitution is a national treasure, but it is also aging out and will one day be out of touch with "modernity" unless it is kept relevant or until out of step political forces die out.
Let me get this out once and for all. This notion conservatives hold that liberals and especially, people of color, want to be under STEWARDSHIP for generations upon generations is vulgar and obscene. So just stop with it! We will not accept being second-class when we are in fact as first class citizens in our country. Indeed, there is only one class of citizenry here: FIRST CLASS. Despite the facade.
Then you do not even begin to understand the point of the constitution and what it intended to do...
The principles in the constitution are timeless and will always be relevant to those seeking freedom from oppression... Just the fact that you want to do away with it as an anachronism shows that you could care less about freedom or the individual citizen...
You believe in a "collective" society... the anathema to what the constitution was established to protect...
Bullshit. I believe the founders expected this nation to grow itself UP! To not be sad, little, pathetic men and women sitting around mistreating its minorities simply because the MAJORITY CAN! The founders expected to lay a foundation for the nation to grow on, a CORNERSTONE to hold the bricks of every 'tomorrow' on, but instead conservatives, now some conservatives, saw an angle they could 'build' on and sap those life-forces of indefinite generations out of them.. All they will have to do is just 'sat' on their damned asses and WORSHIP the 'foundation stone' itself. While the minorities ceaselessly toil around them looking for some hope of getting inside their hardened encasement.
I believe in the good of the U.S.A. and by extension the good of this world. I don't accept half-measures neither for myself or from some conservatives. Labels, you need them more than me. After all, some conservatives need something to hang those denials of freedoms and liberties on when you 'otherize' your fellow taxpayers!
I could care less about collectivism-or individualism as a worldview. Try "diversity-ism" and see if it fits you! (Right now, I'd bet it don't!)
This is where I believe you are wrong. The Constitution and the Bill of Rights are there to protect the minority from the majority. The problem that the majority which at the time was white used their power to cheat and sap the life-forces is not a feature of the Constitution but a failure of the government to follow the constitution and protect the minority. In other words, as man is an imperfect being he allowed for the subjugation of others because of greed and power.
I have no issue with the Constitution being modified. It even has the process to do so built into it. But that process does not include the courts, even SCOTUS, from changing it.
First, I thank you for understanding and your agreement: there is hope between our so-called 'sides.' Second, well then "damn all the lawyers," for being justice-seekers. Or seekers after what is proper. When the legislature sits and 'spins' indefinitely while whole swaths of our citizenry is demoralized and 'perish,' people will cry out t whomsoever will listen and above all act. It is not enough to just say, "there is no one (else) to whom you can go."—There is always some where to plead and be heard!
If the 'capitols' state and federal only wish the courts to speak out on injustice, then its easy enough: Only do JUSTICE! For it is the duty of courts to look into failures of justice!
Nonsense. There is a process for changing the Constitution. That process is written down.... here is the best part.... IN the Constitution.
What do you want to change?
Example?
As are you. Because... here is the best part.... the Constitution guarantees both of you that right.
Bullshit. The constitution also allows for stalling and no-action on the part of state "participants." Or do you think any of us are unnoticing of just how some conservatives are demonizing, projecting, otherizing, name-calling, and dragging out every issue for its 'mileage.' Certainly we are not going to just fold and let you have the measure of our lives going forward. Bet that! Oh yes, Jonathan Turley has revealed he is a partisan 'actor' implying that it "good" to have the constitution to stall out liberals (judging from the tenor of his 'opinion.'
Excuse me, if there was a majority of citizens to support your ideals, they would be law already... since there isn't, there isn't.... Get it?
That's the fairest way for it to work... If your ideals are good ones to be established under the constitution, they already would be and you would have nothing to gripe about...
Your complaints are that liberals don't have enough of a majority to force your views on everyone else...
And that is a good thing the constitution was created to assure... NO ONE can force their view on anyone else without due process of law...
You want to put all these one sided revisionist ideals into law, start convincing people they are right under the constitution.. Until then, suck it up and try harder to convince people... Right now all your arguments are like chaff in the wind...
Of course that is the way of most hate and bigotry in this nation, it doesn't get very far...
This is why you try and slip it in the back door with subterfuge or under supposed "Emergencies" requiring "Emergency Powers" to push things through in the dark of night when peoples attentions are elsewhere...
If your ideals could stand in the full light of day, they would be law already... The fact that they can't is proof positive that they are bad for the nation and it's citizens...
Why should you care anyway? since it isn't being taught and doesn't exist in regular school curricula, why do you so vehemently object to it being banned?
I know why, because the liberals love to run on pretense, what they say seldom matches what they do...
And that's bullshit too. It is you who tries to "PROMENADE" how endearing Dr. King is to you (btw, he was assassinated for his dedication to his people along with JFK, Bobbie Kennedy, Medgar Evers, and the list continues) and your 'passion" for right or is that better stated these days as "the Conservative Right"?
You have twisted yourself into knots, former King 'expresser,' Dr. King's own associates and his social outlook on the needs of the poor belie your striving for the majority to reknit itself into a tight ball to knock over and off those you CHOOSE to otherize.
Some conservatives ought to be ashamed, but that's the point is it not? Some conservatives hide their shame in a sea of forgetful. . . be wary however, shame does 'bob' to the surface and fester there just like putrid dead bodies do.
Continue to strive with the 60's you say you lived, continue to ignore the John Lewis' and Jesse Jacksons' similars who you decry now (had you known Dr. King without knowing them?). They were Dr. King's inner-circle and they spend the better portion and end-times of their life fighting for love, diversity, and peace with their fellow brethren on the right through the Democratic Party. Doing so even during the 'best of times' in civil rights work! Of course, like all Fox News hosts and types you probably spend the better portion of your time calling civil rights ICONS, 'race hustlers' or 'pimps' or some such perversion nowadays.
Yeah, I knew who they were, do you remember Ralph Abernathy?, of course not, your from the Jesse Jackson/Jackson Jr wing of the movement, the black power brigade... Yeah, the ones who forgot the beginnings.. The ones who forced Abernathy out of the leadership conference and took the movement into black power... That's when you marginalized yourselves.... Became liberal politicians rather than americans... It's also when you lost middle america...
The modern black movement was born that only pays lip service to Dr King and his friend and mentor Dr Abernathy... It's when racist hate became the dominate philosophy you preach...
Yeah you can't have me sitting here talking about what I marched for cause you don't want that do ya...
So I knew that eventually your true colors would come out... You can't keep it hidden for long, any one who really did march will eventually get you to expose your true self... Racist hate... Yep... Your infected with it in spades...
I suppose you love Al Sharpton as well... Criminals all of them...
Black Power... Power to the people was the rallying cry, as long as they had the right complexion... (and political connections)
I don't have any shame for what I believe in, I still believe in what Dr King stood for, it's a shame you don't...
I'm done with you, you aren't worth anymore of my time...
Some conservative, please. Dr. King was shot in the face. Sadly ironic: shot through the mouth (The 'seat' of his power over the 'spoken word'). And yet, here you are trying to persuade me to believe some fifty plus years later you are a conservative because "middle America" can't cope? Blowy that smokey somewhere else.
And no, it did not escape my notice that you 'excised' John Lewis from your 'spill' just now. And these men and including Coretta Scott King 'existed' in the movement for justice and social equality long after the assassination of Dr. King. They did so with-out you. Why? Because according to you-you 'bailed' because President Johnson offended you (more than he was an offense to Blacks).
You are a Some Conservative because you desire it, not because of something blacks and other people of color live with everyday! Mister, I can't want the country to change-because the (my) majority won't like that."
And if I am finally not worth you time, do stop finding your way over to me, because I might began to develop a 'complex' after all this:
Are you claiming the Constitution does not have rules for changing it?
Also known as "rejecting bad ideas", depending on the perspective.
You want to change the Constitution because somebody called you a name?
Remember when we had a discussion about actual concrete things instead of pulpit politics? Those were good times.
I'm not sure he's ever represented himself as non-partisan. Why is that a problem?
No, your 'shame,' though some conservatives are shameless , is that when republicans were in charge of all three houses for example, a civil rights icon John Lewis held a sit-in on the house floor over lack of gun legislation and its protest when nowhere toward legislation in a republican-led house. Dr. King, I am pretty sure would have been ashamed of those republicans leaders failure to lead.
Do you know this man? Do you know what he 'stands' for?
Representative John Lewis - center of frame.
Judge Jackson shall be confirmed. And Jonathan Turley can kiss 'bricks.' Because like Alan Dershowitz the 'jig is up' and we see him selling his (constitutionally impacted") ass for his beliefs, allow Biden liberty and peace (be) to peddle his judicial appointee powers for all its worth too (in his old age).