Elections have consequences.
This political truism is the reason Democratic senators were wrong to politicize and sabotage the Supreme Court confirmation hearings of Judge Robert Bork in 1987, Justice Clarence Thomas in 1991, Justice Neil Gorsuch in 2017, Justice Brett Kavanaugh in 2018 and Justice Amy Coney Barrett in 2020. It is why I could not have imagined opposing Judge Ketanji Brown Jackson's confirmation, either privately or publicly, when the hearings began earlier this week.
However, Judge Jackson's responses on three key questions convinced me that her nomination cannot be confirmed, because she is either grossly incompetent or was intentionally misleading in her testimony.
First, consider Judge Jackson's response to a question posed by Senator Dianne Feinstein (D-Calif.) on Roe v. Wade, the landmark U.S. Supreme Court abortion case. The judge cleverly attempted to position herself alongside sitting justices: "I do agree with both Justice Kavanaugh and Justice Barrett on this issue.... Roe and [Planned Parenthood v. Casey] are the settled law of the Supreme Court concerning the right to terminate a woman's pregnancy."
While Justices Kavanaugh and Barrett would have been correct in describing Roe as settled during their confirmation hearings, Judge Jackson was manifestly wrong in describing the case this way during her own—circumstances have changed.
According to the Court in Casey, the central holding of Roe is "that viability marks the earliest point at which the State's interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions." The Supreme Court is currently deliberating on Dobbs v. Jackson Women's Health Organization. It took the case to resolve the question of "whether all pre-viability prohibitions on elective abortions are unconstitutional." The Court is clearly reconsidering Roe's central holding, and therefore it is no longer true that Roe is settled. In fact, given the Court's multiple decisions to permit Texas's heartbeat ban—which effectively restricts legal abortion access for a full 18 weeks before viability—Roe cannot even be said to be "good" or "controlling" law, let alone settled law.
Second, consider Judge Jackson's response to a question posed by Senator John Kennedy (R-La.). After the senator asked "When does equal protection of the laws attach to a human being," she replied "Well, senator, I believe that the Supreme Court—actually, I actually don't know the answer to that question, I'm sorry."
As legal scholar Joshua Craddock detailed in his law review article for the Harvard Journal of Law and Public Policy, the 14th Amendment's ratifiers and defenders declared that the amendment's Equal Protection Clause applies to all humans. This interpretation was confirmed by Justices Blackmun, Brennan and Marshall, all of whom were part of Roe's majority. Even a cursory understanding of the reconstruction amendments—which are arguably the most influential constitutional amendments outside of the Bill of Rights—would have led Judge Jackson to declare that all humans are guaranteed constitutional protection, so equal protection of the laws attaches at the beginning of a human's life.
Finally, consider Judge Jackson's response to another question posed by Senator Kennedy on when life begins: "Senator, umm, I don't, know." While her statement could be explained by her earlier quip, "I'm not a biologist"—which she used to deflect a question on what a woman is—it is further evidence of gross incompetence or willful deceit.
It might be too much to expect Judge Jackson to have read all of the amicus briefs submitted in Dobbs, but she must not have even reviewed SCOTUSblog's summary "We read all the amicus briefs in Dobbs so you don't have to." It reported on a brief submitted on behalf of a "group of biologists from universities in 15 countries." The brief was signed by biologists on both sides of the abortion debate, including supporters and opponents of legal abortion access. It was filed in support of neither party in the case and took "no position on the morality, legality, or constitutionality of abortion access." The brief made clear that "the leading biological view" is "that life begins at fertilization."
At the beginning of these hearings, I could not have anticipated that Justice Jackson's answers would force me to conclude that she either does not understand Roe and important related issues, or she gave willful misrepresentations in her testimony. Her understanding of Roe, Casey and Dobbs is either too weak, or her ideological dedication to abortion rights is too strong, for any reasonable person to deny that Judge Jackson disqualified herself in her bid to sit on our nation's highest court. Such testimony would be excusable if it was related to a minor case, but Roe is arguably the most important Supreme Court case in our nation's history—and by far, the case most recognized by the American public.
Whatever the explanation for Justice Jackson's statements, no senator can in good conscience vote to confirm her nomination to the Supreme Court.
Steve Jacobs is the program director of Illinois Right to Life. He received his J.D. from the Northwestern University School of Law and his Ph.D. from the University of Chicago.
The views expressed in this article are the writer's own.
