Judge Ketanji Brown Jackson may have set a new standard for future nominees

Originally Published: 24 MAR 22 07:28 ETUpdated: 24 MAR 22 09:43 ETOpinion by Adam J. White

Editor's note: Adam J. White is a senior fellow at the American Enterprise Institute and co-director of George Mason University's Gray Center for the Study of the Administrative State. Last year, President Joe Biden appointed him to the Presidential Commission on the Supreme Court of the United States. The views expressed in this commentary are his own. View more opinion on CNN.

    (CNN) -- For decades, US Supreme Court confirmation hearings have taken center stage in American politics, and each hearing has created new norms for future Supreme Court nominees -- both for better and worse.

Consider Justice Ruth Bader Ginsburg's 1993 confirmation hearing, in which she said she could not and would not give answers that might prejudge cases likely to come before the court. Virtually all subsequent nominees, chosen by Democrats and Republicans, have used the "Ginsburg standard" to avoid answering questions on any number of hot-button issues.

This week, Judge Ketanji Brown Jackson may have set another standard in her description of her judicial methodology. By emphasizing the importance of constitutional text as a restraint on judicial discretion, Jackson sounded like conservative former Justice Antonin Scalia at times. "I am focusing on original public meaning because I'm constrained to interpret the text," she told the Senate Judiciary Committee on Tuesday.

We are accustomed to hearing such lines from Republican presidents' nominees, but going forward we can expect Democratic presidents' nominees to be asked if they agree with Jackson's text-centered standard for judicial restraint. And Jackson herself will likely be reminded of it from time to time, too.

While confirmation hearings often descend into heated attacks on the nominee and infighting among senators, they also provide an opportunity for the American people to hear both liberals' and conservatives' views of the Constitution and the Supreme Court's role in our democratic government. The first day of questions for Jackson exemplified both the best and worst of the modern confirmation hearing process.

Some Republican senators spent most of their time questioning her about divisive political issues, such as critical race theory in education and gender identity in sports. These made for memorable television moments, but they were far removed from her record as a judge or the work of a Supreme Court justice.

Other Republicans, like Sen. Mike Lee of Utah and Sen. Ben Sasse of Nebraska, chose to ask about her judicial methodology.

In response, Jackson offered more Scalia-like descriptions of the importance of constitutional text as a limit on judges' own preferences. "We have a foundational document that has text, and it has principles; it establishes freedoms and foundational important concepts that are intended to govern us," she said in a response to Senate Judiciary Chairman Dick Durbin's skeptical question about textualism.

The second day of questions then provided an opportunity for Republican senators to dig deeper into her judicial methodology. Sen. Chuck Grassley of Iowa, for example, used his second round of questions as an opportunity to press Jackson on the relative importance of judicial precedents (a concept known as stare decisis) -- particularly when a judge believes the precedent to be wrongly decided.

His question harkened back to the Supreme Court's famous decision in Brown v. Board of Education to overturn old pro-segregation precedents, but it also pointed to the Supreme Court's pending case on abortion rights, Dobbs v. Jackson Women's Health Organization, which the court will likely decide before Jackson succeeds the retiring Justice Stephen Breyer.

Jackson phrased her answer not in terms of specific cases, but broader principles. Stare decisis, she said, is an important principle that the court "uses at the outset" when deliberating on a case, but it is not an unlimited command, and the justices must ultimately keep or overturn the precedent based on a number of additional factors -- including more recent cases, new facts or understanding of the facts, etc.

Even though Republican Sen. Lindsey Graham of South Carolina cast doubt on her commitment to this approach, citing one case where Jackson departed from a statute's text and her decision was overturned by the DC Circuit, the nominee's broader statements in favor of judicial restraint were significant.

But on other issues related to the courts, Jackson was more reticent. Facing questions on the constitutional norm against "court packing," or adding justices to the court, Jackson declined to engage the issue and speak on an issue of "policy." Her restraint was not unreasonable -- after all, an effort to add justices to the court would require an act of Congress -- but senators missed an opportunity to explore the deeper issue.

Given the importance of maintaining judiciary legitimacy in our constitutional system, more senators could have asked Jackson for broader thoughts on what makes the court's work legitimate. While Lee tried to raise this point in the second day of questions, Jackson declined to answer and he moved on. Later in the day, Sasse tried, too, asking if any upcoming court decisions could delegitimize the court. Jackson simply stated that "all of (the court's decisions) are precedents and they are entitled to respect."

Perhaps the biggest lesson from Wednesday's questions is that Jackson has perfected a two-step approach for nominees to avoid answering questions. Whenever presented with a question about specific legal issues, Jackson reminded senators that as a nominee -- and as a sitting judge -- she must not pre-judge legal questions that might someday come before her court. But when senators pressed questions about broader cultural or policy issues, Jackson said that she's not a policymaker, and that as a judge her job is to answer legal questions -- which, of course, she can't answer in the hearing, either.

Thirty years ago, Scalia warned that so long as the Supreme Court infused constitutional law with the justices' own value judgments, Supreme Court confirmation hearings would "deteriorate into question-and-answer sessions in which Senators go through a list of their constituents' most favored and most disfavored alleged constitutional rights, and seek the nominee's commitment to support or oppose them." All the policy-laden questioning so far has exemplified Scalia's predication. But Jackson, like all recent nominees, has refused to engage.

Jackson clearly appreciates the power of precedents. And future nominees will appreciate the precedent that she has set for handling Senate Judiciary Committee members' questions.

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