Memo from Law Professor John Eidsmoe to the U.S. Senate re Judge Ketanji Brown Jackson
Foundation for Moral Law
One Dexter Avenue
Montgomery, Alabama 36104
Ph: 334.262.1245 • Fax: 334.262.1708
www.morallaw.org
Roy S. Moore
Founder and President Emeritus
Kayla Moore
President
Col. John Eidsmoe
Senior Counsel and Resident Scholar
March 28, 2022
SERIOUS CONSIDERATIONS ON CONFIRMING A SUPREME COURT NOMINEE
Members of the Senate:
As you are no doubt aware, very soon you will be called upon to exercise one of the most important duties of your office: deciding whether to advise and consent to the nomination of Judge Ketanji Brown Jackson (Judge Jackson) as an Associate Justice of the United States Supreme Court. Justices hold office “during good behavior,” which is effectively for life. They are not elected by the people; rather, they are nominated by the President and confirmed by the Senate.
Because this is such an important office, the Framers of our Constitution wisely made the selection of Supreme Court Justices a two-part process: (1) After careful consideration, the President nominates. (2) After more careful consideration, the Senate decides whether to advise or consent. Clearly, the Framers did not intend the confirmation process to be a mere rubber-stamping formality. The Senate is to rigorously examine the nominee to determine whether he or she is truly fit for this near-lifetime position.
Because there are only nine Supreme Court Justices, and because they will render final judgment on countless matters of national concern including the constitutionality of your actions as Senators, your decision whether or not to confirm merits careful thought, investigation, and reflection.
The First Criterion: Faithfulness to the Constitution
Looking to a Supreme Court nominee’s judicial philosophy, faithfulness to the Constitution is of utmost importance.
James Madison, whom some call the “Father of the Constitution” wrote that “(If) the sense in which the Constitution was accepted and ratified by the Nation … be not the guide in expounding it, there can be no security for a faithful exercise of its powers.”[1]
Thomas Jefferson, primary author of the Declaration of Independence and an important American President, promised that “The Constitution on which our Union rests, shall be administered by me according to the safe and honest meaning contemplated by the plain understanding of the people of the United States, at the time of its adoption.”[2]
And George Washington, who chaired the Constitutional Convention and served as our first President, warned in his Farewell Address, “If, in the opinion of the people, the distribution or modification of the Constitutional powers be at any particular wrong, let it be corrected by an Amendment in the way the Constitution designates. But let there be no change by usurpation; though this may in one instance be the instrument of good, it is the customary weapon by which free governments are destroyed.”[3]
When judges depart from this philosophy of original intent, all sorts of dangers arise. The same court that can read into the Constitution rights that are not there, like transgenderism and same-sex marriage, can also read out of the Constitution rights that are there, like free exercise of religion, the obligation of contract, the right to own and use property, and the right to keep and bear arms.
Furthermore, if judges are free to disregard the plain meaning of the Constitution as intended by its Framers, they can twist its provisions to authorize government powers that the Framers never intended. As Madison said of the Constitution, “Every word of which [the Constitution] decides a question between power and liberty.”[4]
In this respect, some of Judge Jackson’s initial testimony could sound encouraging. She said she recognizes her role as a judge is limited: “The adherence to text is a constraint on my authority — trying to figure out what those words mean, as they were intended by the people who wrote them.” She added that if that’s not enough to make a ruling, she looks to history, practice and precedent. “I’m not importing my personal views or policy preferences. The entire exercise is about trying to understand what those who created this policy or this law intended.”
This sounds good, but judicial nominees know that is what they are expected to say. No nominee is going to tell the Senate he or she doesn’t care about the Constitution or the Framers’ intent. Our most liberal Justices have echoed similar sentiments. During Justice Sotomayor’s confirmation hearings, the White House sent a memo assuring Senators that she is a “nonideological and restrained judge” who “rejects liberalism and the injection of personal views and experiences.”[5] As Justice Kagan said during her confirmation hearing in 2010 said, “We’re all originalists now.”[6] We hope Senators will carefully study Judge Jackson’s testimony and writings to determine whether she truly believes in originalism or whether she just gives lip service to the doctrine for confirmation purposes.
Asked by Sen. Grassley whether the Constitution guarantees the right to keep and bear arms, Judge Jackson replied that “The Supreme Court has ruled that the individual right to keep and bear arms is a fundamental right.” That is correct; District of Columbia v. Heller, 554 U.S. 570 (2008); McDonald v. City of Chicago, 561 U.S. 742 (2010). But Judge Jackson did not say whether she agreed with these decisions or whether she would vote to overrule these decisions if she were confirmed to the Supreme Court. A judge might feel bound to follow Supreme Court precedent while serving on a lower court, but might feel free to overrule Supreme Court precedent if sitting on the Supreme Court.
In another most revealing exchange, when Sen. Cornyn asked where the Court gets the authority to employ substantive due process, Judge Jackson responded that the Court has “interpreted the due process clause of the Constitution to include a substantive provision.” This sounds as though she is saying the Court has given this authority to itself. When Sen. Cornyn followed up with the question, “What other unenumerated rights are out there?” she answered, “It’s a hypothetical that I’m not in a position to comment on.” By these answers Justice Jackson is leaving herself free to read into the Constitution anything she wishes it said but does not.
The Foundation understands that judicial nominees must sometimes refrain from giving direct answers to questions that may come before the Court. But Judge Jackson has dodged some of the most significant questions that could define her tenure on the Court. Asked by Senator Kennedy “When does life begin, in your opinion?” she responded before laughing, “Senator, I don’t know.” She added, “I have a religious view, that I set aside when I am ruling on cases.” But we have a right to know what she will consider when ruling on a case involving when life begins, and she hasn’t answered that question. When Senator Kennedy asked the more precise question when the law begins to protect a person or “when does equal protection of the laws attach to a human being?” she again answered that she did not know.
Likewise, when asked by Sen. Blackburn “Can you provide a definition of the word ‘woman’?” Judge Jackson replied “No I can’t” and added “I’m not a biologist.” This exchange has caused much levity, but Sen. Blackburn was asking about the legal definition, which will be at issue in many cases before the Court.
In all of these exchanges, and many more, Judge Jackson has refused to tell the Senate and the nation what kind of Justice she will be. We urge the Senators to press these matters further to get clear answers before voting to confirm.
Judge Jackson on Critical Race Theory
Critical Race Theory (CRT) is probably the most controversial ideology in law schools and academia today. A derivative of Cultural Marxism, it teaches that the world is divided into identity groups, some oppressors and some oppressed. Oppressor groups include whites, males, straights, citizens, and the rich (defined as anyone who is not in abject poverty); oppressed groups include blacks, females, gays, noncitizens, and the poor. The role of lawyers and the courts is to work for “social justice,” (SJ) defined as advancing oppressed identity groups at the expense of oppressor identity groups. Truth is largely subjective, and so cases are to be judged not on who is objectively right or wrong but upon whether a decision will advance the cause of SJ.
It seems clear that one cannot be an originalist and follow CRT and SJ. The concepts are diametrically opposite.
Judge Jackson’s views on CRT and SJ need to be thoroughly explored. In response to a question by Sen. Cruz, she replied, “I’ve never studied critical race theory, and I’ve never used it. It doesn’t come up in the work that I do as a judge.” However, sentencing has been a major part of her work, both as a judge and as a member of the Sentencing Commission. In a speech about sentencing she stated,
Sentencing is just plain interesting on an intellectual level, in part because it melds together myriad types of law — criminal law, of course, but also administrative law, constitutional law, critical race theory, negotiations and to some extent, even contracts.[7]
She also serves on the Board of Georgetown Day School, considered a very “progressive” school. She says concerning the School,
“Since becoming a part of the GDS community several years ago, Patrick and I have witnessed the transformative power of a rigorous progressive education that is dedicated to fostering critical thinking, independence, and social justice.”[8]
Asked to what extent the Georgetown Day School teaches CRT and SJ, Judge Jackson first replied that “Critical race theory, is … an academic theory that is about the ways in which race interacts with various institutions.” She said further that she didn’t believe CRT is being taught in K-12 schools. Sen. Cruz then displayed books that are required reading at Georgetown Day School, including Critical Race Theory: An Introduction, The End of Policing, How to be an Antiracist, and Antiracist Baby. Asked again whether CRT is taught at Georgetown, she replied “I don’t know because the board is not, the board does not control the curriculum.”
It is hard to believe that Judge Jackson could serve on the Board of this school without knowing what the school teaches. Is she being disingenuous, or does she really not know?
The most important question, though, is the extent to which CRT and SJ influence Judge Jackson’s thinking, as they affect the way a judge regards the Constitution, law, crime and punishment, and practically every area within (and without) the Court’s jurisdiction. We urge the Senators to rigorously explore these questions as they consider whether to confirm Judge Jackson to the Supreme Court.
Judge Jackson and the 1619 Project.
The 1619 Project, which was the August 2019 issue of New York Times Magazine, has been widely touted but also criticized even by liberal historians[9] for its factual errors and distorted perspectives. Journalist Nikole Hannah Jones argues that from colonial days America had “a brutal system of slavery unlike anything that had existed in the world before,” and that that slavery and racism are the defining features of the American experience.[10] The underlying philosophy of the 1619 Project very clearly is Critical Race Theory and its goal is Social Justice as defined by critical race theorists.
In a 2020 speech at the University of Michigan Law School, Judge Jackson referred to, in her words, “acclaimed investigative journalist Nikole Hannah Jones” and her “provocative thesis that the America that was born in 1776 was not the perfect union that it purported to be.” When Sen. Cruz asked her whether she was aware that the 1619 Project had been criticized by leading academics such as Gordon Wood of Brown University and James McPherson of Princeton University, she responded, “I was not.”
It is fair to ask whether a reputable judicial scholar would quote from such a controversial work without being aware of its flaws. The Senators should also carefully consider the extent to which the thinking behind the 1619 Project has influenced Judge Jackson’s philosophy, because this thinking will certainly affect the way one regards many of the most important issues to come before the Court.
Judge Jackson on Sentencing Child Pornography Offenders
Judge Jackson’s lenient views on sentencing child pornography offenders, and her record of regularly issuing lighter sentences than prosecutors request and than commission guidelines recommend, has already received widespread attention. In one 2013 case, she sentenced a young man to only three months imprisonment even though the federal guidelines called for 8-10 years and the prosecutor recommended two years — and the defendant was back in her court again in 2019.[11] She has explained that the sentencing guidelines were drafted before child porn became so widely available on the internet, but she hasn’t satisfactorily explained why that should be a reason for lighter sentences. This is especially significant because evidence indicates a link between child pornography and violent sexual offenses.[12]
The Senators should also consider the extent to which Judge Jackson’s views on sentencing child porn offenders are influenced by Critical Race Theory and Social Justice. Does she believe child porn offenders are an oppressed class, and that SJ requires that we treat them more favorably? Is this integrated into her total philosophy, and if so, is this the legal philosophy we want in a Justice who will serve on the High Court for many years to come?
War Crimes?
Between 2007 and 2007, while serving as a federal public defender, Jackson represented four detainees at Guantanamo Bay. In defending these detainees, Jackson argued that the U.S. Government was “directing, ordering, confirming, ratifying, and/or conspiring to bring about the torture and other inhumane treatment,” and that these actions “constitute war crimes and/or crimes against humanity.”[13]
The Foundation understands that in the representation of a client, an attorney sometimes takes a position that he/she does not personally agree with. But the Senators should press this matter further to determine whether these views reflect Judge Jackson’s own convictions.
Partial Birth Abortion
While clerking for Justice Stephen Breyer, then-clerk Jackson worked on Stenberg v. Carhart, 530 U.S. 914 (2000), in which Justice Breyer wrote an 5-4 opinion striking down a Nebraska law that banned partial-birth abortion, a procedure in which a “fetus is partly extracted from the birth canal, feet first, and the brain is then sucked out.” This is a particularly brutal form of abortion, and the Supreme Court soon thereafter upheld a federal ban on the procedure in Gonzales v. Carhart, 550 U.S. 124 (2007), a 5-4 decision in which Justice Breyer dissented.
Does the Stenberg v. Carhart decision reflect Judge Jackson’s personal views? If so, would she vote to overrule Gonzales v. Carhart? Again, the Senate and the American public deserve answers to these questions.
Conclusion
The question is not just whether Judge Jackson is politically liberal.
The question is whether Judge Jackson holds a legal philosophy that is so far out of tune with the basic principles of American legal thought, that Constitutional and statutory provisions should be construed according to their plain meaning as intended by those who adopted them, and that each person should have his or her case judged according to the facts and the law.
If Judge Jackson adheres to Critical Race Theory and Social Justice, she will reinterpret provisions of the Constitution and statutes to give them the meanings she wants to infuse into them, and she will decide cases according to whether they advance an agenda she believes in rather than according to neutral principles of law.
A confirmation hearing is neither a crucifixion nor a coronation. Senators should be respectful of the nominee — and so far they have been — but they should not hesitate to ask hard questions and to persist in pressing those questions until they get truthful answers.
Unless and until they are satisfied with her answers, Senators should not vote to confirm Judge Jackson’s nomination to the United States Supreme Court.
Respectfully submitted,
/s/
John Eidsmoe, Senior Counsel & Resident Scholar
Talmadge Butts, Staff Attorney
Foundation for Moral Law
[1] James Madison; quoted in The Writings of James Madison, ed. G. Hunt, 1900, p. 191
[2] Thomas Jefferson; quoted in Thomas Jefferson (Salt Lake City, UT: Freeman Institute, American Classic Series, 1981) p. 65.
[3] George Washington Farewell Address, 1797, American Historical Documents (New York: Barnes and Noble, 1960) p. 144.
[4] James Madison, January 18, 1792, National Gazette; https://founders.archives.gov/documents/Madison/01-14-02-0172
[5] “We’re All Originalists Now,” by Kellyanne Conway and David McIntosh, June 16, 2009 https://www.realclearpolitics.com/articles/2009/06/16/were_all_originalists_now_97012.html
[6] https://theconversation.com/what-is-originalism-debunking-the-myths-148488
[7] Judge Jackson, Speech, University of Chicago, April 2015.
[8] Spencer Brown, “Judge Jackson Wants to ‘Meld’ American Law with CRT, Social Justice,” March 22, 2022. Brown says the website of Georgetown Day School features events like “Transgender Day of visibility” that urges students to “Use your voice, your platform, and your network to communicate your support for transgender rights, the trans community, and transgender people, particularly trans youth and Black trans women, who are most often and egregiously targeted.”
[9] Adam Serwer, “The Fight Over the 1619 Project Is Not About the Facts,” The Atlantic December 23, 2019 https://www.theatlantic.com/ideas/archive/2019/12/historians-clash-1619-project/604093/; Leslie M. Harris, “I Helped Fact-Check the 1619 Project. The Times Ignored Me. Politico March 6, 2020 https://www.politico.com/news/magazine/2020/03/06/1619-project-new-york-times-mistake-122248; “The ‘1619 Project’ Gets Schooled: The New York Times Tries to Rewrite U.S. History, but Its Falsehoods Are Exposed by Surprising Sources, https://www.wsj.com/articles/the-1619-project-gets-schooled-11576540494
[10] Nicole Hannah Jones, “The 1619 Project,” New York Times Magazine August 2019, https://archive.org/details/1619project/full_issue_of_the_1619_project/mode/1up?view=theater. The Foundation respectfully suggests that the true defining feature of the American experience is its struggle to abolish slavery and its incomplete but highly successful struggle to abolish racial inequality.
[11] Aaron C. Davis and Spencer S. Hsu, “The Child Pornography Case at the Center of Ketanji Brown Jackson’s Hearing,” Washington Post, March 24, 2022. When asked by Senator Cotton what this defendant did to be back in court in 2019, she answered, “I don’t remember.”
[12] Eleanor Kennelly Gaetan, “Internet, Online Porn Seen as Enabling Sexual Exploitation of Children,” February 8, 2019; https://catholicphilly.com/2019/02/news/national-news/internet-online-porn-seen-as-enabling-sexual-exploitation-of-children/
[13] Daniel Dale, “Fact Check: Ketanji Brown Jackson’s 2005 ‘War Crimes’ Allegation Was About Torture,” CNN Politics March 23, 2022, https://www.cnn.com/2022/03/23/politics/ketanji-brown-jackson-hearings-fact-check/index.html
