Justice Jackson by Acclamation

We certainly have ideological differences with Judge Jackson. We have little appetite, though, for a court without ideological diversity.

Circuit Judge Ketanji Brown Jackson in February. AP/Jacquelyn Martin, file

Judge Ketanji Brown Jackson is emerging from her confirmation hearings as a type of woman we particularly admire. They came of age in the era after, as Gail Collins put it in her history of the time, “everything changed.” They embraced womanhood by working longer, studying later, getting up earlier, and trying harder. If we were the Senate — a stretch to be sure — we’d confirm Judge Jackson by acclamation.

We certainly have ideological differences with Judge Jackson. We have little appetite, though, for a court without ideological diversity. We’ve spent years advising young foreign correspondents that the strength of a democracy is directly proportional to the size of the opposition in parliament. We have no interest in purging the Supreme Court of honest liberals. Judge Jackson, like Stephen Breyer, to whose seat she would accede, certainly seems to be that. 

Not that Judge Jackson has opened up a great deal about her judicial philosophy or views on the political economy, a point well-marked this morning in a Wall Street Journal editorial that focused on a case when she bowed to regulators. We prefer what we have called “The Hamburger Court,” after the visionary Columbia professor who is fighting to curb the power of unelected regulatory agencies.

In any event, the sudden turn toward acrimony yesterday in her confirmation hearing is a dismaying development. It also strikes us as a judgment error by the Republicans as they go into the midterm elections and prepare for the presidential campaign about to begin. It centered on the idea that Judge Jackson lacks for fervor in enforcing laws against child pornography. We found Senator Cruz’s tirade unconvincing and off-putting.

Particularly because it is Congress that is — as Judge Jackson kept reminding — the proper author of any reform in sentencing, as well as the ultimate source of sentencing guidelines, which require consideration of individual circumstances. In response to attacks over a light sentence handed down to an 18-year-old, she explained that “judges are doing the work of assessing in each case a number of factors that are set forward by Congress.”

So maladroit were the efforts to picture Judge Jackson as somehow soft on child pornography that they even put Senator Booker in a sympathetic light, if only for a moment, as he took it upon himself to condescend to the nominee, “You have earned this spot. You are worthy. You are a great American.” As Judge Jackson dabbed away a tear, he told her, “you’re a person that is so much more than your race and gender.”

Our favorite moment was when Judge Jackson reminded Senator Graham, “there’s no religious test in the Constitution.” He had asked the nominee: “On a scale of one to ten, how faithful would you say you are, in terms of religion?” It might have been a well-intended effort to mark that nominees to the high — or any — court shouldn’t face the kind of hostility that greeted Justice Amy Coney Barrett.

Still, the prohibition on religious tests — “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States” — is the most emphatic statement in the entire parchment. “No . . . ever . . . any.” Judge Jackson brushed Senator Graham’s query aside with easy authority, which, one can speculate, was honed, at least in part, by being a mother of two children. 

That all this is taking place as Justice Clarence Thomas is in the  hospital adds to the hearings a plangent reminder, as our A.R. Hoffman has put it, that the ideological balance of the court can never be taken for granted. Yet the way to protect the conservative majority among the Nine is for the Republicans to regain control of the White House and Senate, a challenge made more difficult by the ham-fisted attempts to besmirch Judge Jackson.


The New York Sun

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