Judge Ketanji Brown Jackson had trouble defending her sentencing record in child pornography cases during her Senate confirmation hearings this week. She also evaded questions about her judicial philosophy, insisting that she had a judicial “methodology” instead. Curiously, however, Judge Jackson seemed to identify herself as a judicial “originalist,” criticizing “judicial activism” and claiming that she did not even know what the left-wing view of a “living Constitution” meant.
As Reason.com noted, optimistically:
“I believe that the Constitution is fixed in its meaning,” Jackson said. “I believe that it is appropriate to look at the original intent, original public meaning of the words when one is trying to assess [a constitutional provision] because, again, that is a limitation on my authority to import my own policy views.”… Those words came as a pleasant surprise to many originalists. …
Libertarian-minded originalists may also take heart in Jackson’s comments during an exchange with Sen. John Cornyn (R–Texas), who complained to her about the Supreme Court thwarting the will of the majority when it invalidated certain democratically enacted state regulations. “Well, senator,” Jackson calmly and correctly told him, “that is the nature of a right. When there is a right, it means that there are limitations on regulation.”
What Cornyn discovered next, though, revealed that Judge Jackson is not an “originalist” at all. As Breitbart News noted:
[W]hen Cornyn questioned her further about the doctrine of “substantive due process” — the idea that the Constitution incorporates rights that it does not actually enumerate explicitly — Judge Jackson seemed flummoxed by his queries.
On the one hand, she defended the idea that the Constitution could incorporate rights that were a part of common tradition. On the other, she could not answer why, if traditional marriage were part of that cultural tradition, it was somehow excluded.
Sen. Cornyn continued, pointing out that the same discretion that judges used to find new rights in some cases could be abused in other cases. He referred to the notorious Dred Scott case upholding slavery; she seemed not to follow his argument.
So the Senator tried again: “What other unenumerated rights are out there?” Judge Jackson was evasive, saying that the question was “hypothetical.” Cornyn noted that while she purported to oppose judicial activism, she set no boundary for it. Judge Jackson protested that she would be bound by the law and by judicial precedent. But Sen. Cornyn pointed out that as a Supreme Court justice, she would be largely unconstrained by precedent, given the Court’s tendency to set new precedents.