Justice Jackson

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In relatively civil confirmation proceedings, Ketanji Brown Jackson was recently confirmed as the newest Supreme Court Justice. Some observations:

Surprisingly for an administration that usually panders to the lunatic fringe, she appears moderate and, well, sane. During the hearings before the Judiciary Committee, Jackson handled herself well, and she appears well qualified for the position. Not only does she seem moderate, but she even showed signs of being an originalist when she said that the text of the Constitution has a fixed meaning, that the original intent should be considered, and that the ideologically maleable “living Constitution” philosophy embraced by liberals “infuses” the text of the Constitution with “the policy perspective of the day.” Be still my heart!

The “missteps” in her testimony are relatively minor. Her inability to define “what a woman is” because “I’m not a biologist” merely reflects a cagey disinclination to publicly contradict the bizarre gender ideology of her Democratic patrons. She, like everyone, knows the difference but realized that defining the difference in a scientifically defensible manner would embarrass the Democrats and the Orwellian fiction that they are politically obligated to observe.

Likewise, for all of the indignant posturing of some of the questioners, her sentencing record for child porn convictions seems within the mainstream. While decent people are repelled by child porn, most of us also recognize that there is a big difference between actually assaulting children, or participating in or encouraging the exploitation of kids, and merely possessing child pornography. Even with disgusting crimes, sentencing should be proportionate to the harm caused.

Those who attacked her for defending terrorists misunderstand the role of a criminal defense attorney, who is ethically obligated to vigorously defend even those guilty of horrific crimes. By doing so, they keep the system honest and help prevent the conviction of the innocent. While I personally never had any interest in defending criminals, it is a necessary function and someone has to do it.

After the deceitful smearing of Brett Kavanaugh, and the character assassination of Clarence Thomas, by politicians who went on to ignore far more credible allegations against Joe Biden and other Democratic figures, it was amusing to hear some Democrats whining about the supposed “bullying” and “hounding” of Jackson by Republicans on the committee. Asking tough questions about judicial philosophy and prior cases is the reason that such hearings are conducted in the first place, instead of just proceeding directly to the coronation. Unlike the Democrats, the Republicans chose to not conjure up unsupported allegations of high school misconduct, engage in personal attacks, and go “scorched earth.” While there was the predictable Republican grandstanding on hot button issues, they chose the high road, leaving the sewer for the Democrats to crawl through the next time the roles are reversed.

Since the shift to a conservative majority, we have heard many complaints from Democrats that the Supreme Court is supposedly “too politicized.” While Biden’s promise to limit his search for a justice to only 7 percent of the American population was certainly political, it is the partisan yammering of the Democrats that reveals where the politics are coming from. Slate writer Dahlia Lithwick complained that, instead of just answering questions, Jackson should have been given the chance to articulate a “progressive judicial philosophy” that emphasizes “LGBTQ rights, marriage equality, contraception, and abortion”—more of a political platform than a judicial philosophy. And, of course, liberals have long lionized Ruth Bader Ginsburg and Thurgood Marshall for their fierce advocacy of the liberal agenda, hardly the neutrality expected of a judge.

So, just who politicizing the court? Or, is it “politics” only when “your side” doesn’t prevail?

Obviously, I would have preferred a nominee who is more conservative than Jackson is, and I am concerned that her actual politics and judicial philosophy may be more leftist than her testimony indicated. In this hyper-partisan environment, her responses may have been designed more for political consumption than for illumination.

Still, she is the nominee of a Democratic president, and another Antonin Scalia is unlikely. She is qualified, and I see nothing disqualifying in her record or in her testimony. She is the president’s choice. As Obama famously observed, “elections have consequences.” Unlike many of the hysterically unhinged partisans of the left, we Republicans tend to accept the inevitable and to follow the rules, rather than fling gratuitous insults. Perhaps it reflects the small sliver of youthful idealism that survived 40 years of practicing law, but I think that we should respect the process. I hope that the Democrats reciprocate in the future.

And, yes, I anticipate your comments about the nomination of Merrick Garland, and the refusal to give him a hearing. I note that not only does the Constitution give the Senate the right to reject the nominee, but nothing requires a hearing, and it doesn’t guarantee the nominating party a stage on which to theatrically grandstand with their anger and rage over a rejection. Again, elections have consequences. Δ

John Donegan is a retired attorney in Pismo Beach whose judicial exploits were more on the level of Judge Judy, than anything as grand as the Supreme Court. Send comments for publication to letters@newtimesslo.com.

This article appears in Apr 14-21, 2022.