On February 25, 2022, as Vladimir Putin rolled tanks into Ukraine, Joe Biden announced his nomination to the Supreme Court: Judge Ketanji Brown Jackson of the D.C. Circuit Court of Appeals. This replacement comes in the wake of Justice Stephen Breyer announcing his retirement from court after 27 years of service. I commend Justice Breyer for his service to the court, but I do not think Judge Brown Jackson should be awarded the same privilege. 

The nomination of Judge Brown Jackson is historic, but forced equality is not equality. When President Biden considered his Supreme Court list, he made a plea to nominate the first black woman to the court. This is nothing more than identity politics at its best. Instead of giving the Supreme Court nomination to the most qualified candidate, President Biden decided the pigment in one’s skin is a better determinant of judicial deliberation. It would be equally appalling if a president pledged to nominate solely white justices because a nomination should be conducted only on the basis of qualification. Judge Brown Jackson is certainly not the most qualified, even considering just the three black women on the president’s shortlist. One of those three judges, Judge J. Michelle Childs holds an LLM (Master of Laws), while Judge Brown Jackson holds only a JD (Juris Doctorate). But, it should not be surprising that Childs was rejected, since her judicial record is rather moderate, especially on issues of crime and worker’s rights. So, President Biden, as usual, decided to follow the more extreme route. 

While her qualifications are not stellar, her judicial philosophy is even worse. In the 2019 case Make the Road New York v. McAleenan, Judge Brown Jackson wrote an opinion in which she stated that she had the authority to enjoin a department of Homeland Security policy that expedited the removal of illegal aliens from the United States. The flaw in her judicial opinion, was that the law on which the case was based, the Illegal Immigration Reform and Immigration Responsibility Act, said that the decision on deporations was left to the “sole and unreviewable discretion” of the government agency. This was affirmed when the D.C. Circuit reversed her decision afterwards. In another case that came before her court, American Federation of Government Employees v. Trump, she halted the Trump Administration from limiting federal worker’s rights to collectively bargain. The D.C. Circuit again reversed her decision, saying that in order for the unions to sue, they had to first bring a case against the agency process and then the court of appeals could review that case. Judge Brown Jackson apparently has a problem staying in her own judicial lane. She has claimed her right to intervene in cases where she has no authority to do so. She sounds like the last person who should be on the Supreme Court.

In her 2021 confirmation hearing, Texas Senator Ted Cruz questioned Judge Brown Jackson on her opinion of the doctrine of a living constitution, a flawed legal theory which many liberal judges espouse. Judge Brown gave a rather ambiguous answer, “I believe that the Constitution is an enduring document. . . . It has, . . . the Supreme Court has said, a fixed mean­ing, that we’re to look to the original words in the Constitution and . . . as lower-court judges . . . interpret pro­visions the way in which the Supreme Court does, and they look at the text and look at the original meaning. And so if I ever had one of those cases, that is how I would approach the task.” She then wrote the following in elucidation, “As a sitting federal judge, I am bound by the methods of consti­tutional interpretation that the Supreme Court has adopted, and I have a duty not to opine on the Supreme Court’s chosen methodology or suggest that I would undertake to interpret the text of the Constitution in any manner other than as the Supreme Court has directed.” Her answer seems clear enough, but the devil is in the details. She says that while she is a federal judge, she would listen to the Supreme Court, which is part of how the judicial hierarchy works. As students must obey a teacher in order for a schoolroom to function, so too must lower court judges listen to the Supreme Court, or else mayhem would ensue. However, Judge Brown Jackson leaves herself enough room to change opinions of her interpretation. If she were not a lower court judge, but a Supreme Court justice, then her reasoning here would not hold up, for she would be an equal of the high court, not one of its subordinates. While she must uphold the standards set forth by the Supreme Court, that does not mean she can’t hold a judicial philosophy of her own. But, she plays as if she doesn’t and evades the heart of the question.

President Biden has stated that he will appoint judges who profess belief in a living constitution and Judge Brown Jackon will no doubt be a disciple of it. Her record of promulgating her authority where she has none, reminds me of when Justice William O. Douglas attempted to declare the U.S. bombing of Cambodia unconstitutional by himself after the Supreme Court dismissed a case against it. Judge Brown Jackson will be Justice Douglas on steroids. I think this nomination is harmful to our nation’s judicial fabric and I encourage the U.S. Senate to reject it swiftly.