As the Senate hearings on the Supreme Court nomination of Judge Ketanji Brown Jackson unfold, we should find increasingly troubling Jackson’s tendency toward rank sophistry.
While it is indeed a judge’s job to parse words carefully, there’s a difference between humbly parsing words to figure out their meaning and willfully doing so to manipulate their meaning beyond ordinary limits. Jackson has done the latter, sometimes so far beyond plausibility as to go past faulty discernment into the realm of bad faith.
For one minor example, she claimed that a controversial essay she wrote in law school about public registries for sex offenders was merely analytical and descriptive, without advocacy. Well, I read the entirety of the paper, and while it is largely presented as a purely analytical discussion, her analysis leaves absolutely no doubt that she concludes many aspects of the registries are unconstitutional. When, under questioning from Texas Republican Sen. Ted Cruz, she claimed otherwise, she was splitting hairs already so thin that they couldn’t be further split.
She similarly dodged and over-parsed questions from Missouri Republican Sen. Josh Hawley about a case in which she imposed only a three-month sentence on a child pornography convict when sentencing guidelines suggested at least a 97-month sentence. On her judicial philosophy and even on how to define a woman, conservative former federal prosecutor Andrew McCarthy writes, “Jackson bobs and weaves,” even when “it is inconceivable that she doesn’t have an answer.”
To my mind, though, the most egregious sophistry came when Cruz caught her in an apparent contradiction about whether she subscribes to, or makes use of, the “all whites are racist” outlook known as critical race theory.
“I’ve never used it, and it doesn’t come up in the work that I do as judge,” she said at first.
To which Cruz cited a speech she gave at the University of Chicago in which she said, “Sentencing is just plain interesting … because it melds together myriad types of law — criminal law, of course … constitutional law, critical race theory …”
That’s where she drew what was, in the context of criminal sentencing, a nakedly sophistic distinction without a difference.
“With respect, senator,” she said, “the quote that you are mentioning there was about sentencing policy; it was not about sentencing. I was talking about the policy determinations of bodies like the Sentencing Commission when they look at a laundry list of various academic subjects as they consider what the policy should be.”
Jackson had served on the U.S. Sentencing Commission before becoming a judge. And yes, the commission is a quasi-policymaking body in that, within parameters established by Congress, it provides for particular federal offenses a recommended minimum and maximum sentence.
Judges, though, are free to veer well outside the Sentencing Commission recommendations as long as they don’t evade mandatory parameters set by Congress. When they do so, judges are exercising the same sort of discretion in a specific case that the commission is doing in its broader recommendations for the whole class of the offense at issue.
To at first say that critical race theory is not something she has ever considered in her work but to have said in a speech that the Sentencing Commission (which was indeed part of her work) should indeed consider it, and then to say that sentencing “policy” does not enter her work as a judge, is like trying to see how many contradictions can fit inside an alternative-universe thimble.
It is almost offensively ludicrous to say that something “is about sentencing policy” but “not about sentencing” when, in either case, one is working in a discretionary enterprise involving not just the law but value judgments within the law. Considering the many other times Jackson has paid public homage to either critical race theory or its advocates, it is essentially dishonest to feign obliviousness to it and to deny it plays any role in her approach to the law.
There are other ways she could have handled many questions without the sophistry and evasiveness. Had she been more forthright, even those who disagree with her politics would have been more inclined to trust her rather than suspect her motives.
