With the Senate Judiciary Committee set to start hearings in a week for Supreme Court nominee Judge Ketanji Brown Jackson, a prominent conservative judicial activist is signaling to Republicans how to “contrast” how advocates portray her versus the high court pick’s “actual record.”
Judicial Crisis Network President Carrie Severino told the Washington Examiner that President Joe Biden is “trying to replace a moderate liberal justice with a radical liberal justice,” comparing Jackson to retiring Supreme Court Justice Stephen Breyer.
Severino referenced Jackson’s previous Senate Judiciary Committee hearings ahead of her confirmation last year to the U.S. Court of Appeals for the District of Columbia Circuit — specifically Texas Sen. Ted Cruz’s line of questioning on a “living Constitution,” or the idea that the Constitution can evolve and has relevant meaning beyond the original text.
In response to Cruz’s question of “whether we have a living Constitution,” Jackson said that in her previous role as a district judge, she had not undertaken any cases that “required” her to develop a view on “constitutional interpretation of text in a way that the Supreme Court has thought about the tools of interpretation.”
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“That, to me, is a very disturbing answer for someone who has sat on the federal bench for eight years, in a life tenure federal judge position, that they still don’t know how to interpret the Constitution,” Severino said.
Notably, Republican Sen. Lindsey Graham and Democratic Rep. Jim Clyburn had previously championed South Carolina federal Judge Michelle Childs to be Biden’s Supreme Court nominee, a judge who had previously said “no” on a nomination questionnaire asking whether she thought the Constitution is a “living” document.
Nearly every Republican senator who sits on the committee has echoed Senate Minority Leader Mitch McConnell’s pledge to review Jackson’s “judicial philosophy” ahead of her hearings before the committee, which are slated to begin on March 21.
Meanwhile, the White House has touted endorsements by several prominent retired judges with conservative backgrounds who have upheld the Biden administration’s selection of Jackson in an effort to display bipartisan support. On Wednesday, a letter signed by 59 former U.S. attorneys and Justice Department officials backing Jackson’s career background was sent to Senate Judiciary Committee Chairman Dick Durbin, praising her experience as a public defender and “deep understanding of how our criminal justice system works.”
In response to whether she believes some centrist Democrats such as Sen. Joe Manchin of West Virginia or Sen. Kyrsten Sinema of Arizona would oppose Biden’s high court nominee, Severino said she’s “pessimistic,” adding, “At the end of the day, they still want to be able to follow the Democrat line and a lot of these things.”
Republicans are aware Democrats may prevail in their efforts to confirm Jackson to the highest court, given the party’s slim 50-50 majority in the Senate with the vice president’s tiebreaking vote coupled with the fact that Jackson’s presence on the nine-member court wouldn’t change the present 6-3 conservative supermajority. Still, Severino said that shouldn’t exempt Jackson from a strict line of questioning, noting that Republicans in the Senate may bring up some of her previous decisions that were reversed at the appeals court level.
According to a Senate Judiciary Committee questionnaire, 10 of Jackson’s 578 decisions as a judge of the U.S. District Court for the District of Columbia were reversed by the D.C. Circuit, either in whole or in part.
“I think another good example that also involved being reversed by liberal appointees is AFL-CIO v. Trump,” Severino said, referring to a case that had to do with the public union and bargaining executive order by former President Donald Trump. Jackson invalidated a 2020 rule by the Federal Labor Relations Authority that had restricted the bargaining power of federal-sector labor unions.
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“In that case, one of the most liberal justices on the court, Judge Sri Srinivasan, was on that panel, and it unanimously reversed her ruling, saying she lacked jurisdiction there,” Severino added.
Ahead of Jackson’s Senate hearings, Severino said Biden’s Supreme Court nominee could “try to present herself as a moderate and maybe even as a as an originalist,” adding, “I think it’s going to be a challenge to keep focused on what part of this is spin and what part of this actually has evidence behind it.”
