The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Politico Magazine asked several scholars what question they would pose to Judge Jackson. I tried something different:
"How would you change the Supreme Court confirmation process?"
The Supreme Court confirmation process is broken. Nearly three decades ago, then-Professor Elena Kagan described the routine as "a vapid and hollow charade." And to no one's surprise, Kagan and all other Supreme Court nominees refused to answer any questions that could have jeopardized their prospects. Now, it is Judge Jackson's turn to play charades. Yet, she is uniquely suited to address a critical question: How should the Supreme Court confirmation process be changed? Jackson has already gone through judicial confirmation hearings before and is about to run the gauntlet again. Jackson's experience gives her a perspective into every facet of the process: selection by the president, preparation before the so-called murder boards, meeting with senators and enduring the hearings.
I'm fairly certain that Jackson will have thoughts on how the process could be improved. But more importantly, three follow-up questions will reveal how she understands law and politics. First, what should the president look for in a potential Supreme Court justice? Not this president — a president in general. Jackson may explain, indirectly at least, why she thinks she was selected. Second, what specific questions should senators ask a Supreme Court nominee about her record? Certainly Jackson thinks some questions are in bounds. And those questions would shed light on which aspects of Jackson's jurisprudence are fair game for the political process. Third, how should senators decide whether to vote for a nominee? Perhaps she thinks senators should vote for any nominee who meets some minimum qualifications. But she may think something more may factor into the decision — whatever that is, senators should probe further.
If phrased properly, Jackson will find it difficult to dodge these questions. No rules of judicial ethics prevent her from commenting on the confirmation process in the abstract. And through this approach, senators can gain insights into how Jackson understands the seat that she will likely fill for decades.
I look forward to watching the hearings.