Numerous conservative legal leaders have been tweeting, quite correctly, that Supreme Court nominee Judge Ketanji Brown Jackson began the interrogation part of her hearings sounding almost like a conservative’s dream nominee.
Her record and some of her writings, of course, say otherwise. Nobody should believe Jackson will be anything other than a very liberal justice. Still, the degree to which she answered questions by adopting textualist or originalist thought processes is a testament to how conservative jurisprudential approaches now frame most constitutional law discussions. Even liberals are now arguing within parameters set by jurists such as Justice Clarence Thomas and the late Justice Antonin Scalia. That’s a good sign.
Ross Kaminsky, a conservative radio host in Denver who writes for American Spectator, said, “I don’t know if Ketanji Brown Jackson will actually rule based on the originalist principles she elucidated this morning, but if she’s even close to that, she’s as good a nominee as conservatives/libertarians could hope for.”
Libertarian-conservative legal academician Randy Barnett, who led the constitutional battle against Obamacare, tweeted that “saying the right things at a confirmation hearing is still important. It’s a signal of what is ‘the norm.’ Talk like this drives nonoriginalists crazy … Also, her ‘affect’ is wonderful, too — which goes to judicial temperament.”
Other conservative commenters said the same. And with good reason.
For example, Jackson regularly spoke about “the greatness of this nation” being evident in how much progress the United States has made in numerous ways in just a generation or two, rather than asserting that the country is irredeemably flawed. She repeatedly spoke of “adherence to the text” of the Constitution and laws as a proper “restraint on my own authority as a judge.” Rather than saying legal texts have meanings that “evolve” with the times, she said that a text should be interpreted according to “what it meant to those who drafted it.”
(Actually, conservatives believe slightly differently, namely that the original, publicly understood meaning of the text, not the drafters’ ‘intent,’ should guide judges. But Jackson’s answer is very much in the right ballpark.)
Unlike a number of Democratic judicial nominees in the past two decades, Jackson also sounded conservative when speaking very definitively against the use of international law to adjudicate U.S. domestic cases. She said she agreed with a questioner that international law should not be used “for interpreting enumerated or unenumerated” constitutional rights. “The use of international law is very limited in our law, and in our judging, is very limited,” she said, adding that it is applicable only “if Congress directs” as much or if the case “involves a treaty.”
Finally, again and again, Jackson spoke of how important it is for her as a judge to “stay in my lane,” not to assume that judges should exert executive or legislative functions. Of course, that’s what nominees are supposed to say when pressed, but she volunteered it again and again as if she meant it. She is showing an important amount of respect for our system’s “separation of powers” — the structural restraints, not just the Bill of Rights, that protect American freedoms.
There are plenty of legitimate reasons conservatives may still hope Jackson does not get confirmed. Nonetheless, her testimony bolsters the cause of helping the public understand how a judge in the U.S. system should approach the job. Jackson probably won’t give conservatives many wins when she is on the Supreme Court, but her testimony itself is a significant victory for the conservative judicial enterprise — and for the Constitution itself.
