Judge Jackson is evading questions for a reason. She knows her record against free speech, for left wing racism, and of apologies to child pornographers would not play well with the Senate or the American people. So she lies and doubletalks. Law professor Jonathan Turley is concerned.

Close

Turley: “In passing on this nomination to the Supreme Court, we must also pass judgment on whether or not your particular philosophy is an appropriate one at this time in our history.’ Those words in 1987 were a game changer in American confirmations when Democratic senators opposed the Supreme Court nomination of Judge Robert Bork by President Ronald Reagan.

While the Senate had long maintained that a qualified nominee would be confirmed despite his judicial philosophy, that changed with Bork. The man who uttered those words was the senator from Delaware: Joe Biden.

Biden has now made his first nomination as president. Democrats insisted, in the words of Rep. Jim Clyburn, Judge Ketanji Brown Jackson’s confirmation must be “beyond politics.” That has not been the position of the Democrats since Bork and certainly not in the last three nominations. Indeed, many Democrats went public with the nomination of Amy Coney Barrett that they would vote against her entirely on her conservative approach to constitutional and statutory interpretation. The question is whether these hearings will clearly establish the judicial philosophy of Jackson.

In her opening statement, Jackson discussed her past decisions and stressed “I believe in transparency. That people should know precisely what I think and the basis for my decision.” GOP senators will demand the same transparency from her during the question and answer sessions. While other nominees have been relative unknowns on their judicial philosophies, Jackson has an interesting added element. In her recent appellate court confirmation process, Jackson expressly refused to discuss her judicial philosophy.

Far left groups like Demand Justice are clearly confident about Jackson’s judicial philosophy. Many of these groups opposed fellow short-lister District Judge J. Michelle Childs because she is viewed as too moderate. Indeed, Childs expressly said that she does not believe in the liberal interpretative model of the “living constitution,” where the courts can substantially change the meaning of the Constitution without being formally amended.

Yet, President Biden stressed that his nominee must follow a “living constitution” approach, including a broad view of “unenumerated rights.” In her last appearance before the Senate, Judge Jackson specifically asked if she followed the “living constitution” model. She repeatedly refused to answer that questions. She told the Senate that she is “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.”

The answer left many of us confused. She is bound to follow the precedents of the Supreme Court — but she is allowed to have her own philosophy on constitutional interpretation. Moreover, prior nominees have discussed their approach to constitutional and statutory interpretation. One of them was Jackson herself. When she was nominated for the district court, Jackson answered “no” to that question.

Who do you think would win the Presidency?

By completing the poll, you agree to receive emails from LifeZette, occasional offers from our partners and that you've read and agree to our privacy policy and legal statement.

Justice Amy Coney Barrett not only refuted the premise of the living constitution theory but expressly embraced an originalist interpretative approach…Jackson has spent days before “murder boards” practicing responses to this and other expected questions. She is likely to give a highly generalized response. The strategy of confirmations is to offer the smallest target by offering the least possible information. To that end, Jackson is likely to invoke the “Ginsburg Rule” that any discussion of her interpretation in specific areas would be inappropriate…

Indeed, Republicans may be quoting Biden from the Ginsburg hearing where the Ginsburg Rule was fashioned. Biden advised Ginsburg that these hearings are meant “to discuss your judicial philosophy” and later expressed concern over how Ginsburg, “at least from my perspective, appeared to be reticent to answer” questions about her judicial philosophy. Professor Biden is likely less worried than Senator Biden about such reticence in the days to come.