Republicans' Questions to Ketanji Brown Jackson Were Appalling. Confirm Her Now | Opinion

Having listened to the Judiciary committee hearings, I am confident that Judge Ketanji Brown Jackson will be confirmed. It is even possible that she will receive some votes from Republicans on the Judiciary Committee because a number of them have suggested that she is highly qualified, as the Bar Association committee stated.

Is Brown Jackson a perfect nominee? Has there ever been one? Every nominee whose hearings I have watched—and there have been many—leaves something to be desired, particularly by their refusal to answer questions that they know may make it difficult for some senators to vote for them.

But Judge Jackson answered enough to assure doubters of two conclusions: that she is at least as qualified as many nominees who have been confirmed, and that she is not a knee jerk radical, but rather someone who seems to be a moderate liberal in the mold of the justice she will succeed, my friend Stephen Breyer.

That should be enough for confirmation, and that would have been enough in the pre-Robert Bork days. But the failure to confirm Bork, along largely partisan lines, changed everything. So did the failure to give Judge Merrick Garland a hearing back in 2016. Now there seems to be no pretense of judging candidates on their merits and demerits. Partisanship prevails, and it is rare for a senator to vote for a nominee of a president of the opposing party.

This sort of partisanship is not what the Framers of the Constitution intended when they gave the Senate the power to advise and consent. They wanted the President to nominate judges who would be acceptable to wise Senators, without regard to partisanship. We may someday return to the Framers intent, but we are a long way from there now.

I was particularly appalled by the focus on Judge Jackson's decisions involving sentencing. The questions about her sentencing were purely partisan—designed to present the Democrats and their candidate as soft on crime and weak on the protection of children. They may have scored some political points, but they were not performing their constitutional function as the Framers intended.

Judge Jackson may not have been as well prepared as Judge Amy Coney Barrett to discuss the particulars of her prior decisions, but her answers accurately described the complexity of the sentencing process involving individuals with different backgrounds, as well as questions of culpability and propensity of future harm.

I was particularly pleased with Judge Jackson's refusal to identify a particular judicial philosophy. Some of our greatest justices have come to the bench with no such overarching philosophy. They may not fit the description that Chief John Roberts famously gave, that the job is to "call balls and strikes." No judge does that (even baseball empires vary in the width of their strike zones). Discretion is central to the role of a judge; but discretion does not require an overarching judicial philosophy. Judge Jackson did a good job describing her methodology, and I hope she continues to apply it as she rules on complex and wide-reaching cases.

Being a Supreme Court justice is very different from being a trial court judge, and even considerably different from being an appeals court judge. Inevitably, a justice will be voting in a manner that makes broad national policy rather than merely resolving specific disputes between parties. Indeed, the very fact that the high court determines its own docket through the writ of certiorari, makes it clear that their role is not like that of lower court judges.

Jackson Makes History Confirmation
Judge Ketanji Brown Jackson is sworn-in during her confirmation hearing before the Senate Judiciary Committee in the Hart Senate Office Building on Capitol Hill March 21, 2022 in Washington, D.C. Jackson has made history as the first Black woman to be confirmed to the Supreme Court. Drew Angerer/Getty Images

We did not learn much from Judge Jackson's answers about her views on hot button issues, but we can predict comfortably her vote on some of them, including abortion, gay marriage and voting rights. What we cannot predict is how she will resolve conflict between freedom of speech and racial equality, conflicts that are currently roiling the political and academic left in America. Nor can we know for certain how she will decide Second Amendment gun cases. We know she will recuse herself from very a difficult Harvard case involving alleged discrimination against Asian American applicants, but we don't know how she would resolve a similar case involving a university with which she had no contact.

Judge Jackson will be confirmed with at least two or three Republicans appropriately performing their constitutional function by voting for a highly qualified nominee whose views are in the mainstream. We, the public, will then have an opportunity to evaluate her decisions over a long period of time. She is unlikely to shock anyone, but she may surprise some.

Follow Alan Dershowitz on Twitter @AlanDersh and on Facebook @AlanMDershowitz. His new podcast, The Dershow, can be found on Spotify, YouTube and iTunes.

The views expressed in this article are the writer's own.