Biden’s Supreme Court Nominee Is Qualified — But Is That All That Matters?

The Senate plans to start its confirmation hearings for President Joe Biden’s Supreme Court nominee, Judge Ketanji Brown Jackson, before the end of the month. She is already busy wooing lawmakers on Capitol Hill, many of whom have praised her court experience and credentials. But a closer look at her judicial record suggests senators should think carefully before giving Jackson a premature vote of support.

Jackson, who has served on the U.S. Court of Appeals for the D.C. Circuit since the summer of 2021, is impressive on paper. She graduated from Harvard University and later Harvard Law School, edited the Harvard Law Review, and clerked for three federal judges, including Supreme Court Justice Stephen Breyer, whom  she would replace if confirmed. She then worked as a public defender for a number of years before former President Barack Obama appointed her to the U.S. Sentencing Commission, and later to the U.S. District Court for the District of Columbia, where she served until Biden nominated her to the federal appeals circuit last year.

With this experience, no one doubts whether she would be able to do the job of a Supreme Court justice. The real question is whether she would use her position to uphold the U.S. Constitution and the rule of law on which it is based, or undermine both by pursuing a leftist political agenda. 

Certain parts of her record point to the latter. For starters, a troubling number of Jackson’s decisions have been reversed on appeal by conservative and liberal judges who have argued she misinterpreted or misrepresented very basic principles of the law. In a 2019 case (Make the Road New York v. McAleenan), for example, the D.C. Circuit Court of Appeals ruled unanimously that she wrongly halted a Department of Homeland Security decision that would have expanded its expedited deportations of illegal immigrants. The three-judge panel’s decision made it clear that Jackson’s stay of the DHS policy had no legal or constitutional basis. On what, then, was she basing her ruling? Was it decided according to what was legally just or what she believed to be politically right?

Some of her past comments also demand an explanation.. During her confirmation hearing before the Senate Judiciary Committee last year, she denied that she had a “judicial philosophy per se” and refused to explain her decision-making process when asked. Her reasoning was that, as a lower court judge, she was “bound by the methods of constitutional interpretation that the Supreme Court has adopted.” This answer made sense at the time. Now, however, this excuse doesn’t apply, since the constraints she mentioned would not bind her were she to be confirmed to the bench. 

That’s why it is vital that lawmakers figure out exactly how Jackson thinks about the Supreme Court and the rule of law. Does she think of the Constitution as a changing or immutable doctrine? Does she believe the law must be applied equitably or impartially? Does she understand that the judiciary’s role is necessarily limited? 

All of these questions must be answered before lawmakers agree to send her to the Supreme Court. Her record must be scrutinized — only then should her nomination move forward.