Legitimate reasons exist to ask Supreme Court nominee Ketanji Brown Jackson probing questions about her jurisprudential philosophy. Those questions, however, should be sober and fair, not histrionic and overly accusatory.
The precise wording of the questions is important. They should be designed to elicit as much specificity as possible without suggesting a lack of respect for Jackson’s integrity or professional attainments, which by all accounts are formidable.
With those parameters in mind, here are some of the questions senators should ask.
On sexual offenses, including child pornography, against minors
1. While there seems to be widespread agreement in the legal community that official (but not mandatory) sentencing guidelines related to sex offenders do not allow enough leeway for particular circumstances of the individual offenses, the Sentencing Commission has said the error can go both ways. Yes, it advised that some circumstances should merit lesser penalties, but it also advised that current guidelines can result “in unduly lenient ranges for other offenders who engaged … in sexually dangerous behavior.” Yet in all of such cases on which you have ruled, you have departed from the guidelines only in favor of more leniency, never to apply more severe penalties. Why?
2. In a Harvard Law Review article, you argued that judges should look with skepticism at “burdensome legislative action” that requires them “to register with local law enforcement officials, notify community members of their presence, undergo DNA testing, and submit to civil commitment for an indefinite term.” While college essays written a quarter-century ago certainly shouldn’t be a major determinant as to your fitness for a judgeship, your professional record does seem to indicate a consistent skepticism of punishments handed out to sex offenders. Do you still believe that sex offender registries, for the protection of the broader community, are of dubious value and legal propriety?
3. As a judge, your most extravagant departure from guidelines in favor of leniency came in United States v. Hawkins in which the defendant distributed numerous examples of child pornography and in which guidelines recommended a sentence of at least 97 months. Yet you imposed a sentence of just three months. What were the mitigating factors that led you to order a mere three months of imprisonment, and do you still think that lenient sentence was appropriate, and if not, what exactly made you wish you could have a do-over?
(Note, please, that this question is open-ended in a way that may allow Jackson to portray this decision in a far better light. That’s fine: The idea is not to ask a “gotcha” question to make her look bad but to elicit information about her judicial approach.)
On the pending Supreme Court case regarding Harvard University’s race-conscious admissions program
This is simple: While there are certainly gray areas relating to when a justice should recuse herself from a case, and while pledging recusal (or not) in many instances is particularly problematic for people still facing confirmation, the Harvard case presents an especially bright line. You serve on a major school governing body, the Harvard Board of Overseers. You thus have a direct interest in the outcome of this case. If you will not recuse yourself from this case, many of us will conclude your sense of judicial ethics is impaired. Will you pledge, right here and now, to recuse yourself from Students for Fair Admissions v. Harvard?
On race and equal justice before the law
Many of us believe that both critical race theory and the 1619 Project are noxious morally and flat-out false factually. You are on record multiple times saying complimentary things about both of them or about their chief proponents. Even belief in critical race theory, though, is not necessarily a disqualifier for the Supreme Court unless the nominee wants to incorporate it into her judicial approach. Critical race theory, which holds that race is a primary determinant of human action, is an offshoot of critical legal studies, which basically asserts that “all law is politics” so that judges no less than legislators are making decisions as much political as legal.
1. With that in mind, how, if at all, do you believe judges should incorporate political and race-based considerations into their decision-making?
2. What, if anything, quite specifically constrains Supreme Court justices from just applying their policy preferences, especially concerning racial issues, to cases they consider?
There. Those are the questions related to conservatives’ chief concerns about Jackson. They do not overstate any argument against her but instead provide her an eminently fair chance to explain exactly how she approaches each subject as a judge.
She is an impressive lady. She should be able to handle these questions with aplomb.
