by Jonathan Turley at Jonathan Turley
With the completion of her two days of confirmation testimony, one fact is now clear: Judge Ketanji Brown Jackson insists that she has no judicial philosophy other than a judicial methodology that is essentially identical to her oath of office. Putting aside the legal and linguistic problems with that position, most of the media and legal experts have simply shrugged and moved on. That is curious because just a week ago, many of these same figures went ballistic when I noted that we have little evidence of a judicial philosophy in past decisions by Judge Jackson and it would be one of the key issues in her confirmation hearings.
Indeed, it was treated as racist to even note that Jackson’s record does not offer a clear judicial philosophy on the interpretation of the Constitution or statutes. Democratic senators like Sheldon Whitehouse have now recognized the “fact that Judge Jackson said ‘I do not have a judicial philosophy.’” (3:45) It is not clear if we can now take Jackson’s word on the subject.
CNN legal analyst and law professor Steve Vladeck was one of the commentators who objected to my column that the record is thin on Jackson’s judicial philosophy on interpreting the Constitution or statutes. (For the record, I have previously criticized Vladeck for false legal claims).
Vladeck declared that the claim that the record on a judicial philosophy is “bunk” and noted that she has hundreds of decisions. Notably, Vladeck only responds to my reference to a “comparably thin record” despite the fact that it was a reference made “in terms of her judicial philosophy.”
Vladeck suggested that I was saying that she had little experience. I not only raised the record solely in terms of her judicial philosophy but previously discussed in writing and on television Jackson’s experience on the court. None of that matters with today’s hair-triggered commentary.
As I noted later, that is a bizarre take since all but one of those decisions were trial court decisions. Most deal with insular evidentiary or trial issues. As with prior nominations, I read as many as I could to do due diligence as a legal commentator. Counting the number of decisions is a rather superficial point when few deal with issues illustrative of judicial philosophy. Yes, 10 appellate decisions can be more illustrative than 100 decisions issued on trial issues. I did not find much of a record on how Judge Jackson interpreted constitutional or statutory text. With limited publications outside the court, it was a thin record on opinions showing how Jackson would approach defining rights or interpreting text.
As a trial judge,…