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“As we move this nomination to the Supreme Court, we will also have to decide whether your particular philosophy is appropriate at this time in our history.” The words were a game changer in the US ratings in 1987 when Democratic senators opposed President Ronald Reagan’s nomination of Judge Robert Burke to the Supreme Court.
The Senate has long said that a nominee would be confirmed despite its judicial philosophy, which has changed with Burke. The man who said the words was a Delaware senator: Joe Biden.
Katenji Brown Jackson confirms: Media praises Biden’s nominee in 2020 after mocking Amy Connie Barrett
Biden has now made his first nomination as president. Democrats insisted that, in the words of Rep. Jim Cliburn, Judge Keaton G. Brown Jackson’s affirmation must be “beyond politics.”
Democrats have not held that position since Burke, and certainly not in the last three nominations. In fact, with the nomination of Amy Connie Barrett, many Democrats have publicly stated that they would vote against her conservative approach to constitutional and legal interpretation.
The question is whether these hearings will clearly establish Jackson’s judicial philosophy.
In his opening remarks, Jackson spoke of his past decisions and stressed that “I believe in transparency. People need to know what I think and what is the basis of my decision.” The GOP senators will demand the same transparency from them during the question and answer session.
While other nominees have been relatively unknown on their judicial philosophies, Jackson has an interesting extra element. In the process of confirming his recent appeal, Jackson flatly refused to discuss his judicial philosophy.
Extremely far-right groups, such as Demand Justice, are clearly convinced of Jackson’s judicial philosophy. Many of these groups opposed fellow Shortlister District Judge Jay Michelle Childs because he was considered too moderate. In fact, the children made it clear that they did not believe in the liberal interpretation of the “living constitution”, where courts could substantially change the meaning of the constitution without formally amending it.
Nevertheless, President Biden stressed that his nominee must adhere to the “living constitution” approach, which includes the broader concept of “countless rights.”
In her last appearance before the Senate, Judge Jackson specifically asked if she followed the “living constitution” model. She repeatedly refused to answer these questions. He told the Senate that he was committed to the methods of constitutional interpretation adopted by the Supreme Court, and that it was his duty not to comment on the method chosen by the Supreme Court or to suggest that I read the text of the Constitution. I will take up the task of interpreting. Any method other than the direction of the Supreme Court. “
The answer confused many of us. He is bound to follow the precedents of the Supreme Court – but he is allowed to base his philosophy on constitutional interpretation. In addition, former nominees have discussed their views on constitutional and legal interpretations. One of them was Jackson himself. When he was nominated for district court, Jackson answered “no” to this question.
Justice Amy Connie Barrett not only denied the basis of a living constitutional theory but also explicitly adopted a genuinely interpretive approach.
Since Burke, Democrats have demanded that Republican candidates answer such questions and oppose them solely on the basis of their philosophy. The late Senator Ted Kennedy famously attacked Burke on the Senate floor:
“Robert Burke’s America is a land where women will be forced to have abortions in the back street, blacks will sit on separate lunch counters, ruthless police can break down citizens’ doors in midnight raids, school children Cannot be taught about evolution, writers and artists can be censored at the behest of the government, and the doors of federal courts will be closed on the fingers of the millions of citizens for whom the judiciary – and often individual rights Democracy is the only protector that is our heart. There is no better justice than this injustice.
It was a complete misrepresentation of Burke’s views, but it worked. Bork was “Bork” and Biden played a key role in “Borking”.
Jackson has practiced answering this and other expected questions before the “murder boards.” Probably a very general answer.
The verification strategy is to present the smallest target by presenting as little information as possible. To that end, Jackson is likely to launch a “Ginsburg Roll” that would be inappropriate for any discussion of its interpretation in specific areas. However, she is likely to be pressured into agreeing with the interpretive point of view of past arguments before joining the bench.
McGuire vs. Reilly amicus brief is likely to attract the most attention. As a volunteer lawyer, Jackson wrote in defense of Massachusetts law on behalf of women’s groups, which barred abortion protesters from entering facilities. In Jackson’s favor, the law is similar to the Colorado law that Hull v. Colorado Court upheld 6-3. However, this decision is considered by many conservatives to be fundamentally unconstitutional.
The late Justice Antonin Scalia disagreed with Justice Clarence Thomas:
“What we have in front of us is ultimately a speech code against the opponents of abortion, and therefore it takes advantage of the ‘ad hoc notification machine’ which the court has set in motion to set aside any principle of constitutional law.” After depriving opponents of abortion of their political right to persuade voters that abortion should be restricted by law, the court is still considering women who are considering abortion. It continues to attack their individual right to be persuaded and expands on what they are doing. Which we apply in all other contexts. “
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Based on what Democrats have said since 1987 (and more recently with Justice Barrett), Republicans can vote against Jackson if she still holds the same view. Democrats opposed Barrett, although his interpretive views were supported by a majority of the court in pre-trial cases on issues such as gun rights.
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In fact, Republicans are quoting Biden from the Ginsberg hearing where the Ginsberg principle was formulated. Biden advised Ginsberg that the purpose of these hearings was to “discuss your judicial philosophy” and later expressed concern about how Ginsberg was “at least interested in responding, from my point of view”. Gives questions about his judicial philosophy. Professor Biden is probably less worried than Senator Biden in the days to come.
Click here for more from Jonathan Turley.