Opinion: Ketanji Brown Jackson must be weighed on her judicial merits, not on politics
If Congress would do its job — the hard work of crafting compromises on the most divisive issues of the day — the court would be far less important.
Supreme Court nominations have become flash points in the balance of American power. That oddity, not intended by the nation’s founders, is a sign that Congress has failed in its role as a legislative body that is supposed to settle the weightier matters dividing the American people.
Ketanji Brown Jackson’s nomination so far has generated much less special-interest hyperventilating than did Justice Amy Coney Barrett’s or Justice Brett Kavanaugh’s before her. The most likely reason is that her confirmation would not change the presumed 6-3 conservative split of the court.
Whatever the reason, it has been good to see. Not insignificantly, Jackson was introduced at the start of her confirmation hearing by Thomas Griffith, a retired U.S. Court of Appeals for the District of Columbia Circuit judge and the former general counsel of Brigham Young University.
“I come here as a jurist appointed by a Republican president, George W. Bush, and I come here as someone who understands that there are few greater responsibilities under the Constitution than serving as a justice on the United States Supreme Court,” Griffith said.
His remarks not only spoke volumes about Jackson’s qualifications to serve on the nation’s highest court, but they signaled a refreshing break in the steady drumbeat of partisanship that seems to have infected all facets of life in Washington.
As we said just before the confirmation hearing of Justice Barrett, a nominee of former president Donald Trump, much of the rancor in recent Supreme Court nomination hearings can be traced to Congress’ own dereliction of duty. This has put the focus on the makeup of the Supreme Court as the ultimate political battle.
Nominations have become about politics and power instead of principles and policy. Barrett was confirmed almost exclusively along party lines, with only one Republican, Sen. Susan Collins of Maine, breaking ranks to vote against her.
Few people expect Jackson’s nomination to follow a different script. Democrats now control the Senate, so she is likely to be confirmed. For many partisans on both sides of the aisle, voting for a Supreme Court nominee from the other party would be seen as political suicide. Such an attitude is not in the nation’s best interest.
By contrast, only 17 years ago Chief Justice John G. Roberts, a nominee by a Republican president, was confirmed by a 78-22 vote that included many Democrats.
A century ago this fall, Utah’s own George Sutherland, the only Utahn to ever occupy a seat on the Supreme Court, was nominated and unanimously confirmed on the same day.
Were the issues troubling Americans any less vexing in 1922? Not likely, but people did not turn to the Supreme Court for the answers.
That doesn’t mean senators need to hold hands and unanimously sing Jackson’s praises. But their criticisms should be substantive and directed at her judicial qualifications.
Supreme Court nominations do matter. The government web site, uscourts.gov, lists the court’s four main purposes. First, “it is the court of last resort for those looking for justice.” Second, it exists to ensure the branches of government remain within the limits of their power. Third, it acts as a check on laws that violate the Constitution, thus protecting civil rights and liberties. Fourth, it protects the rights of minorities against laws the majority may pass that harm or take away liberties.
But the court’s power must also be kept in balance.
It does not have the power to make law. Justices are especially not supposed to descend like last-minute heroes in some ancient Greek play and solve the nation’s most vexing problems.
And yet, Congress over many years has failed to do the difficult job of crafting laws that compromise and settle some of the nation’s most important issues — from abortion to immigration to the intersection of religious liberties and LGBTQ+ rights. The court is left to settle matters, often ruling on executive orders from the White House that came about because Congress failed its duty.
Some Republican senators have attacked Jackson’s rulings on child pornography cases. As Andrew McCarthy of the conservative National Review wrote, this is a weak argument. Her rulings have been in line with those of other judges. He notes that Republican Sen. Josh Hawley, R-Mo., is concerned about, “Jackson’s support for eliminating the existing mandatory-minimum sentences for first-time offenders who receive or distribute child pornography.”
McCarthy says Jackson is right on that issue. We agree and have long supported eliminating mandatory sentences, which lead to inequities and unnecessary plea bargains in the handling of criminal offenders.
Other senators disagree with Jackson on matters of judicial philosophy. These concerns are legitimate, but they apparently did not seem as problematic when the Senate confirmed her three previous times for lesser judicial appointments.
The ultimate truth here is that elections have consequences. Americans elected a Democratic president. But they also elected individual members of Congress who, if they did their jobs without constantly worrying about the political consequences of compromise, could render the Supreme Court far less important.
In the meantime, Jackson seems eminently qualified to become a Supreme Court justice.