Why Ketanji Brown Jackson Shouldn’t Hide Behind Judicial Neutrality
By Paul Rogat Loeb, published on CommonDreams.org
It’s tempting for Judge Ketanji Brown Jackson to follow the standard theater of evasion, hiding her views, during her confirmation hearings, behind the image of judicial neutrality. That’s what multiple recent nominees did, retreating into legalisms about how much they respect precedents, and are just, in Justice Roberts’s phrase, neutral umpires. “I will not comment on what any justice said in an opinion,” Amy Coney Barrett responded to a question on voter discrimination. “I should not and may not make a commitment about how I would handle a particular case,” said Brett Kavanaugh, to a question about recusing himself from cases relating to investigations of Trump. Neil Gorsuch declined to comment on multiple specific cases when asked, instead reaffirming the general importance of respecting past decisions. These same nominees then overturned decision after critical past decision once they were confirmed, as everyone knew they would.
Judge Jackson needs to do the opposite, to make clear the values she stands for, which are ones most Americans support. She can do that to a degree as she tells her personal story, which is indeed powerful and compelling. She can talk about judicial principles that are larger than any particular issue or stand. But she also needs to make clear her perspectives on exactly the divisive issues that have come before the court and will continue to do so. Because she’ll be speaking not just to the Senators who will confirm her but also to American voters who would agree with her perspectives but need to understand the stakes of their own participation, come November.
That won’t happen if Jackson retreats into legal abstractions and her Ivy League pedigree. She has to challenge the decisions that this court and recent courts have been making and are on the verge of making.
I’m not suggesting she embrace flame thrower character attacks. She can frame her arguments like eloquent and civil dissents, including those of her mentor, Justice Breyer, dissents that speak to the future even if they may not shift a particular vote. She can explain clearly and strongly why the Justices who voted as they did in key recent cases are morally and legally wrong, including how they violated major precedents on issues from voting rights to labor rights. But she needs to articulate the divides, and those asking questions in the committee hearings or helping her prepare responses need to help her do so.
That means talking about Roe Vs Wade, whose continuance the country solidly supports. It means talking about voting rights and partisan gerrymandering, highlighted by the Ukraine’s courageous fight to preserve their democracy, about the court that she’s about to join, sanctioning union busting, eroding employee and consumer rights, and blocking attempts to address the existential crisis of climate change.
Judge Jackson is a powerful nominee no matter what questions are asked and what she says in response. But if she can meld her story and the issues well enough, then maybe the majority of people who share her values will overcome the cynical despair that otherwise risks their staying home in November and once again making Mitch McConnell the sole arbiter of which judicial nominees advance and which do not. If she talks only in legal abstractions, it will only reinforce the distance of most Americans from politics, and the cynical conclusion that Democrats and their representatives, including Judge Jackson, stand for little beyond timidity and abstraction. America needs potential voters and volunteers to be inspired by what she says, not to once again feel disappointed because those they might have hoped for to lead them pretend the court is above the fray.
Again, Judge Jackson needs to do this with civility and dignity, treating the justices whose decisions she’ll challenge as human beings with a potential to be convinced, even if this potential seems unlikely. But she’s speaking not just to the Justices and Senators, but to the American public. And people need to know where she stands on the future of America.
Paul Loeb is the author of Soul of a Citizen and the Impossible Will Take a Little While