Mar 07, 2022
It's tempting for Judge Ketanji Brown Jackson to hide her views, during her confirmation hearings, behind the image of judicial neutrality. That's what multiple recent nominees did, retreating into legalisms about how they support stare decisis, so won't overturn precedents, and are just, in Justice Roberts's phrase, neutral umpires. "I will not comment on what any justice said in an opinion," Amy Coney Barrett responded to a question on voter discrimination. "I should not and may not make a commitment about how I would handle a particular case," said Brett Kavanaugh, to a question about recusing himself from cases relating to investigations of Trump. Neil Gorsuch declined to comment on multiple specific cases when asked, instead reaffirming the general importance of precedent. These same nominees then have overturned decision after past decision once they were confirmed on the court.
Judge Jackson needs to do the opposite, to make clear the values she stands for, which are also ones most Americans support. She can do that to a degree as she tells her powerful personal story. And she can talk about judicial principles that are larger than any particular political stand. But she also needs to make clear her perspectives on exactly the divisive issues that have already come before the court and will continue to do so. Because she'll be speaking not just to the Senators who will confirm her but also to American voters who need to understand the stakes.
That won't happen if Jackson retreats into legal abstractions and her Ivy League pedigree. She has to challenge the decisions that this court and recent courts have been making and are on the verge of making.
I'm not suggesting she come in with flame throwers and character attacks. She can frame her arguments like eloquent and civil dissents, including those of her mentor, Justice Breyer, that speak to the future even if they may not garner the votes of her fellow justices. She can explain clearly and strongly why the Justices who voted as they did in key recent cases are wrong, including how they violated major precedents, on issues from voting rights to the rights of unions. But she needs to articulate the divides, and the Senators asking questions and helping her prepare responses need to help her do so. Because the majority of American voters do not endorse the stands that this Court and its recent predecessors have taken. Jackson needs to speak to them as well as to the Senators voting on her nomination.
That means talking about Roe vs. Wade, whose continuance the country solidly supports. It means talking about voting rights and partisan gerrymandering, highlighted by the Ukraine's courageous democratic fight, about the court sanctioning union busting, eroding employee and consumer rights, and blocking attempts to address the existential crisis of climate change.
If Jackson can meld her story and the issues well enough, then maybe the majority of people who share her values will understand the stakes enough to overcome the cynical despair that otherwise risks their staying home in November and letting Sen. Mitch McConnell (R-Ky.) once again play the role of tsar, who controls every judicial nomination that's put forward. If she talks only in legal abstractions, it will only reinforce the distance of most Americans from politics, and the conclusion that Democrats and their representatives, including Judge Jackson, stand for timidity, masked by elitist credentialing. And voters and volunteers who might otherwise be inspired by her story and her stands will be at that much greater risk of staying home.
Again, Judge Jackson needs to do this with civility and dignity, treating the justices whose decisions she'd vote against as human beings with a potential to be convinced, which she'll do her best to do once she reaches the court. But she's speaking not just to the Justices she'll be joining or even the Senators who will vote on her, but to the American public. The case she needs to make is about where she stands on the future of America.
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