What Republicans Should Ask Ketanji Brown Jackson Next Week | Opinion

Supreme Court confirmation hearings have become what then-professor Elena Kagan 25 years ago called "a vapid and hollow charade"—at best, kabuki theatre where senators' votes are predetermined and the public learns little about the nominee, who is coached to talk a lot while actually saying little. That's why next week, when Judge Ketanji Brown Jackson comes before the Senate Judiciary Committee, will largely be an exercise in going through the motions.

But that doesn't mean Republicans should either roll over or go on a scorched-earth attack. The former would miss an opportunity to show the American people the differences in the parties' approaches to the role of judges in our constitutional system, while the latter would politically backfire—much as the Democrats' smear campaign against Brett Kavanaugh cost them Senate seats in the ensuing 2018 midterms.

While GOP senators have little chance of derailing the nomination, they can certainly inflict a cost on their political opponents—but only if they stay focused on substantive issues and avoid grandstanding. Republicans' mantra should be, to coin a phrase, "When they go low, we go high."

Here are three areas Senate Republicans should probe.

1. Judicial philosophy. At her D.C. Circuit confirmation hearings last year, Jackson told the Judiciary Committee that she did not have a "judicial philosophy per se" but was bound, as a lower court judge, by Supreme Court precedent. What does that mean? Has she really not thought about how to approach cases? Is this a reiteration of John Roberts' old quip about how a judicial "umpire" just calls balls and strikes? In the controversial cases that are more metaphysics than baseball, is she equal parts originalist and living constitutionalist?

In response to written questions back then from Committee Ranking Member Chuck Grassley (R-IA), she wrote that she was "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." Of course, when you're on the Supreme Court, law is "settled" until it isn't, so justices may or may not follow precedent, depending on their view of the merits of a case and of the weight of stare decisis—the idea that some erroneous precedent should be allowed to stand to preserve stability in the law and protect reliance interests.

Moreover, while the Court issues rulings, it does not "adopt" a methodology; that's up to each individual justice. Judge Jackson clerked for the man she'd be replacing, Justice Stephen Breyer, so how has his approach—a pragmatic "active liberty" that sometimes considers foreign law when interpreting the Constitution—influenced her jurisprudence? Polling suggests that Americans prefer that judges apply legal text as written, which should inure to Republicans' benefit if they can demonstrate what Jackson's apparent non-philosophy might mean for an ever-expanding federal government.

2. Harvard's racial preferences. Since 2016, Judge Jackson has been a member of Harvard University's Board of Overseers. That board "provides counsel to the University's leadership on priorities, plans and strategic initiatives."

Well, that means that Jackson has had some involvement in advising on, and approving, Harvard's system of racial preferences, which the Supreme Court will be reviewing next term. Although Students for Fair Admissions filed its lawsuit against Harvard before Jackson joined the Board of Overseers, the case challenges policies and practices that have remained in effect during her tenure. That makes it a slam dunk for recusal, right?

Supreme Court Nominee Ketanji Brown Jackson
Ketanji Brown Jackson, President Biden's SCOTUS nominee, meets with Utah Senator Mike Lee. Jackson's confirmation hearings are set to begin on Monday, March 21, 2022. (Photo by Anna Moneymaker/Getty Images) Anna Moneymaker/Getty Images

The federal recusal statute states: "Any justice...shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." If being on the board of an organization whose policy is the direct subject of litigation doesn't warrant recusal, nothing does.

Judge Jackson will likely demur from answering questions on the subject, citing Harvard's policy on conflicts of interest, which requires board members "to honor the strict confidentiality of meetings and discussions"—but that perfectly reasonable response in no way dispels any appearance of bias, which comes from the fact of simply serving on a governing board. Republicans should be able to make hay if Jackson merely promises to "study the issue," and not automatically recuse.

3. Court-packing and other political issues. Both Justice Breyer and the late Justice Ruth Bader Ginsburg were unequivocally against expanding the Court, because such a maneuver, intended by progressives to somehow improve the Court's "legitimacy," would only delegitimize and politicize it. When Senate Minority Leader Mitch McConnell (R-KY) last week asked Judge Jackson for her views on the issue, she declined to take a position. If Jackson again refuses to answer at her hearing, it would play into the narrative that she aligns with the progressive activists pushing court-packing—include those who engaged in an unseemly campaign to "Retire Breyer."

Indeed, Republicans should "heighten the contradictions" by driving a wedge between Jackson's pledged respect for the rule of law and left-wing activists' (and politicians') increasingly unhinged attacks on the judiciary. Recently, The Nation's Elie Mystal went on "The View" to call the Constitution a "kind of trash" that should be "scrapped altogether." Senate Majority Leader Chuck Schumer (D-NY), meanwhile, having besmirched Justices Kavanaugh and Neil Gorsuch before an abortion oral argument in 2020—prompting a rare rebuke from Chief Justice Roberts—recently said that judges must "be able to understand each litigant's lived experience" in order to "apply the law equitably."

The Biden administration's focus on identity politics suggests that it wants Jackson to represent demographic constituencies and apply "equitable"—as opposed to equal—justice, but these are highly unpopular positions.

In the end, none of this is likely to matter for Judge Jackson's fate. Elections have consequences and the nominee has the sorts of credentials that qualify someone for the Supreme Court. Accordingly, barring some unforeseen development, the Democrats' slim Senate majority will be enough to confirm her—with about 52-56 votes, a margin similar to Gorsuch or Amy Coney Barrett. Given such narrow splits and the political fights that produced them, too many people now think of the justices in partisan terms. That is unhealthy for our republic, but it is unsurprising when contrasting methods of constitutional and statutory interpretation now largely track identification with political parties that are more ideologically sorted than ever.

Republican senators would be well-served to make that dynamic clear, and to leave it to the people to decide what kind of judges they want.

Ilya Shapiro is author of Supreme Disorder: Judicial Nominations and the Politics of America's Highest Court, which comes out in paperback this summer.

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