The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
NBC has just published my column on the confirmation of President Biden's Supreme Court nominee, Judge Ketanji Brown Jackson. Here is an excerpt:
On Thursday, Judge Ketanji Brown Jackson, President Joe Biden's nominee for the Supreme Court, was confirmed by a 53-47 vote in the Senate. Only three Republican senators joined all 50 Democrats in supporting her. Many of the specific objections that Republicans raised during Jackson's confirmation hearings were ridiculous and off-base. But another line of objection to her nomination was eminently reasonable, even if still disputable: her judicial philosophy….
While GOP senators had every right to oppose Jackson, the reasons many of them gave were dubious, at best. The issue they raised most often during the confirmation hearings was her supposed softness in sentencing defendants convicted of offenses involving images of child sexual abuse. As conservative criminal justice expert Andrew McCarthy explained in detail in two National Review articles, Jackson's rulings in these cases were well within normal parameters.
Even more risible than the pornography accusation was Texas Sen. Ted Cruz's charge that Jackson's pre-judicial career as a public defender indicates she has a "a natural inclination in the direction of the criminal" because a public defender's "heart is with the murderers, the criminals … that's who they're rooting for."
Cruz's demagoguery was topped by that of Sen. Tom Cotton of Arkansas, who charged that Jackson might have wanted to defend the Nazi leaders tried at Nuremberg for war crimes following World War II. The insinuation that she is somehow sympathetic to Nazis is absurd….
Despite such ridiculous excesses, Republicans weren't necessarily wrong to oppose Jackson's nomination because of her judicial philosophy. To his credit, GOP Sen. Ben Sasse of Nebraska clearly stated that he based his opposition on such grounds, while recognizing that Jackson has "impeccable credentials" and "is an extraordinary person with an extraordinary American story."
Sasse and other Republicans could reasonably expect that a liberal nominee would have significant reservations about their preferred approach to interpreting the Constitution, and often cast votes inimical to conservatives on important issues such as affirmative action and gun rights…. My own view is that Jackson probably deserved to be confirmed because her positions are likely as good or better than those of realistically feasible alternatives. But reasonable senators could differ with that assessment….
Senators have just as much right to consider judicial philosophy when voting on confirmation as presidents do when deciding whom to nominate in the first place. The methodology a justice uses in reaching decisions is an important part of the job she performs. As then-Illinois Sen. Barack Obama put it in defending his vote against George W. Bush nominee Samuel Alito, "meaningful advice and consent [by the Senate]… includes an examination of a judge's philosophy, ideology, and record," as well as "intellect" and "personal character."
In today's polarized Senate, such opposition is routine. The last Supreme Court justice to be confirmed with overwhelming bipartisan support was the one Jackson will replace: Justice Stephen Breyer, confirmed by an 87-9 vote back in 1994. Since then, a large percentage of senators in the party opposing the president who made the selection have objected to every nominee, beginning with Chief Justice John Roberts. Roberts got 22 opposing votes among the then-45 Senate Democrats (and one Democrat-aligned independent). After that, every Supreme Court nominee to come to a vote has been opposed by over 75 percent of senators from the other party. Biden was among the Democratic senators who joined Obama in voting against Alito on judicial philosophy grounds. They also both voted against Roberts.
Some argue that differences over judicial philosophy should be set aside if the nominee's views are "mainstream." But most of the Supreme Court's worst decisions were within the judicial mainstream of their day, including Dred Scott and Plessy v. Ferguson. Jackson is well within the mainstream of liberal legal thought, just as recent Republican nominees were all well within the conservative mainstream. That doesn't necessarily mean they will avoid terrible errors. A senator who sincerely believes a mainstream nominee's views will lead to awful results can legitimately take that into account in deciding how to vote.