Saturday, December 2

Judge Jackson’s confirmation hearings offer vital civics lessons

Peeking behind the dark clouds of political posturing around Judge Ketanji Brown JacksonKetanji Brown JacksonA Black woman justice is long overdue for America  The Hill’s 12:30 Report: Senators lean into Jackson’s child porn sentencing record Graham gets combative with Jackson: ‘What faith are you, by the way?’ MORE’s Supreme Court confirmation hearings are five important lessons in basic civics. These are not lessons that most people understand unless they have had access to the elite education that many members of the U.S. Senate possess, including at the nation’s top law schools. Without a working knowledge of these principles, viewers who are responsibly following the hearings can be easily misled by certain lines of questioning.

Let’s clear up a few of them:

1. Jackson’s nine years as a trial judge could make her more judicially restrained than the last three appointees to the Supreme Court — Justices Neil GorsuchNeil GorsuchThe Memo: GOP seeks to make Jackson part of broader Biden midterm war Will Senate apply the Ginsburg or the Barrett Rule to Judge Jackson? Ketanji Brown Jackson’s judicial superpower: An appreciation of the human consequences of court rulings MORE, Brett KavanaughBrett Michael KavanaughFive takeaways as Jackson takes tough questions from GOP Jackson says Roe v. Wade ‘settled law’ that is ‘relied upon’ LIVE COVERAGE: GOP senators grill Jackson in grueling day MORE, and Amy Coney BarrettAmy Coney BarrettFive takeaways as Jackson takes tough questions from GOP Graham gets combative with Jackson: ‘What faith are you, by the way?’ Jackson says Roe v. Wade ‘settled law’ that is ‘relied upon’ MORE — who have no such experience. (In fact, of the current nine, only Justice Sonya Sotomayor similarly served on the U.S. District Court.) 

Trial judges are bound by precedent. If they sidestep higher court rulings, they will be reversed. Jackson understands this in her bones, and as a result, could be very hesitant to disturb prior Supreme Court precedent interpreting the Constitution. She is also used to following the directives of Congress. Ignoring Congress and overriding or adding to statutory text — as the modern court did recently by adding a five-step test to Section 2 of the Voting Rights Act in a case called Brnovich v. Democratic National Committee, to the disadvantage of voters — would likely be viscerally uncomfortable for Jackson. She wrote 578 decisions applying existing law as a federal trial judge, and two during her relatively brief stint as an intermediate appeals judge on the U.S. Court of Appeals for the D.C. Circuit.

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This kind of truly restrained judging is good for the U.S. legal system, as it leads to predictability in the law. It also adds to the credibility of the judicial system itself, which hinges on the public’s perception of judges as inherently fair and apolitical.

2. The Supreme Court’s discretion is relatively narrow, as it is bound by a factual record developed in a lower court and by its own legal precedent.

Trial courts collect evidence and make factual findings. Intermediate appellate courts review the record created by the trial court, but cannot develop their own facts by, say, hearing witnesses or gathering additional documents.

The Supreme Court is the highest appeals court. It is not supposed to tinker with fact-finding unless the trial court’s decision was “clearly erroneous” — an overwhelmingly difficult standard for lawyers to meet. Moreover, the doctrine of “stare decisis” — something that all of the last three nominees professed to respect — confines Supreme Court justices’ discretion to change established law.

These days, many Americans are on the edge of their seats fearing sweeping changes to abortion rights, to the delicate line between religion and government, to the ability of federal agencies to pass regulations, and so on. If the modern court renders such fears a reality, it will be moving beyond its traditional role — not mindfully upholding precedent. Federal judges aren’t elected — and cannot be fired at the ballot box. The “best” justices are those who have a modest view of their own power.

3. In addition to adhering to the rule of law, judges are trained to hear both sides of every issue.

For the Supreme Court, this means full “briefing” — receiving and poring over long papers filed by both parties and others offering insight, known as “amici” — and then hearing oral argument about the contents of the papers. After argument, the justices meet and confer and decide how they will vote, and who will write the various opinions. After many months, the court issues its decisions publicly in the early summer of each year.

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Yet, the modern court has moved away from this foundational tenet of good judging, as well. Last year, it granted an unprecedented number of so-called “shadow docket” requests for emergency relief — decisions that defy normal procedure. These requests included a case that ultimately allowed Texas’ six-week abortion ban to go into effect in contravention of its precedent under Roe v. Wade, with even Chief Justice John Roberts dissenting.

These emergency decisions are made without the benefit of full briefing, and without a full explanation of the court’s reasoning. They often come down with a brief, one-paragraph edict. In the Texas abortion case, the majority’s quick-and-dirty decision effectively overruled Roe in Texas without actually doing so. Women in Texas do not enjoy the full protections of the Constitution in this moment as a result — even though Roe is still the law of the land.

4. A judge’s personal experience is impossible to separate from their everyday work, so it’s important to consider each candidate as a person.

Jackson has experienced pregnancy and childbirth, and is a mother to two daughters. 

One of her uncles was sentenced to life in prison for a nonviolent drug offense. Another formerly served as Miami’s police chief. A third served on the Baltimore police force. 

Jackson received her undergraduate and law degrees from Harvard, where she worked with Sen. Ted CruzRafael (Ted) Edward CruzFive takeaways as Jackson takes tough questions from GOP Cruz presses Jackson on critical race theory in tense questioning Jackson forcefully pushes back against GOP child porn sentencing attacks MORE (R-Texas) on the Harvard Law Review, one of the most prestigious positions a law student can achieve in the United States. She is related by marriage to former Republican vice-presidential candidate and House Speaker Paul RyanPaul Davis RyanLIVE COVERAGE: GOP senators grill Jackson in grueling day Panel on ‘The View’ calls for DOJ to probe Tucker Carlson over Putin rhetoric Wyoming legislature kills crossover voting ban despite Trump’s support MORE. Her husband is a surgeon. Her brother is a commercial lawyer at a large and powerful law firm. She was in an acting class at Harvard with Matt Damon.

All told, although Jackson has hardly lacked access to power and influence in her life, she is about as far away from the elitist “ivory tower” as any Supreme Court candidate we have seen in a long time. This balance, again, is a good thing for nearly everyone in America.

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6. The legal system works best if everyone is represented by good lawyers.

Jackson faced sharp questioning about having served in the past as a lawyer for criminal defendants, including Guantanamo Bay detainees. The troubling implication is that she’s somehow “soft on crime.” But any judge knows that a solid factual record and sharp, thorough legal analysis from both sides makes their job easier. Sloppy, shoddy, incomplete lawyering can produce flawed outcomes.

Yet, sadly, good legal representation in the United States largely hinges on wealth. In civil cases, our system mostly makes parties pay their own way, even if they ultimately win. Large corporations can hire armies of lawyers. A middle-class American cannot. In the criminal context, the Sixth Amendment right to counsel has many holes, inapplicable to many stages of the criminal justice process. Even if it does apply, “free” public defenders are often overworked and unable to offer the caliber of representation that a wealthy criminal defendant’s lawyers can mount. Again, Jackson’s work on the defense side is not a strike against her — it means that she served the public interest, not her own. 

An understanding of these basic civic lessons benefits all Americans — citizens and non-citizens, Republicans and Democrats, people of color and folks of Caucasian descent, queer and straight individuals, people of Christian and other religious faith, registered voters and children who cannot yet participate in the future of their own government. Hopefully, then, most of us can see through the politics and appreciate that Jackson — who is impeccably credentialed — will do her job dutifully and well. 

Kimberly Wehle is a professor at the University of Baltimore School of Law and author of “How to Read the Constitution — and Why,” as well as “What You Need to Know About Voting — and Why” and “How to Think Like a Lawyer – and Why.” Follow her on Twitter: @kimwehle

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