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President Biden nominated Judge Ketanji Brown Jackson of the D.C. Circuit to replace Justice Stephen Breyer on the Supreme Court. This is the third post on her nomination. It provides twenty-five questions that Senators should ask at her confirmation hearing. The first post detailed who Judge Jackson is and what President Biden wants in a Supreme Court nominee. The second post examined and critiqued her opinion in Committee on the Judiciary v. McGahn (D.D.C. 2019) where she held the House Judiciary Committee's subpoena of former White House Counsel Don McGahn was enforceable in federal court.
The Big Picture
President Biden nominated Judge Ketanji Brown Jackson to replace Justice Stephen Breyer on the Supreme Court. If confirmed, she will replace Breyer at the end of the Court’s current term in late June or early July.
Jackson’s confirmation hearings will run from March 21 through March 24, and she will be asked questions by Senators on the 22nd and 23rd. Majority Leader Chuck Schumer (D-NY) wants Jackson confirmed before the Senate leaves for Easter recess on April 8th.
Debatably, Senators have no more important role than to exercise their constitutional duty of advice and consent than when it comes to Supreme Court nominees. See U.S. Const. art. II, § 2, cl. 2. While this is for several reasons, the most important are because of the Supreme Court’s role as the highest court in the American judicial system, and the Court with the authority to overturn previous decisions it and lower courts have issued.
When now-Justice Elena Kagan was a law professor at the University of Chicago, she critiqued a book and offered her own thoughts of what the Supreme Court confirmation process should entail. Kagan said the confirmation hearing must focus on “the nominee’s broad judicial philosophy and…her views on particular constitutional questions.” Judicial philosophy means, “the judge's understanding of the role of courts in our society, of the nature of and values embodied in our Constitution, and of the proper tools and techniques of interpretation, both constitutional and statutory.” The second part of the inquiry entails, “the insistence on seeing how theory works in practice by evoking a nominee's comments on particular issues–involving privacy rights, free speech, race and gender discrimination, and so forth–that the Court regularly faces.” (See pages 935-936.)
With this framework in mind, below are the questions divided by topic that Senators should ask Judge Jackson.
Judicial Philosophy (9)
When you were nominated for the D.C. Circuit, Senator Cruz (R-TX) asked you whether you believed in a “living Constitution.” In response, you said, “I have not had any cases that have required me to develop a view on constitutional interpretation of text in the way that the Supreme Court has to do and has to have thought about the tools of interpretation.”
Today, can you succinctly describe your judicial philosophy? How will you approach constitutional questions? Would you consider yourself an originalist? Or do you believe in a living or evolving Constitution? What is your understanding of originalism and living constitutionalism? What are the biggest holes in those theories of constitutional interpretation?
In that same line of questioning from Senator Cruz (R-TX), you said, “I am aware that the Supreme Court, at least with respect to certain provisions of the Constitution that it already interpreted, has looked at history and is focused on the original meaning of the text… the Supreme Court has said, a fixed meaning, that we’re to look to the original words in the Constitution.” If confirmed, will you adopt this judicial philosophy? What are the biggest holes with this theory of interpretation? Do you think the Constitution has a “fixed meaning” and that the Court should look to the original words?
In a dispute between the original meaning of the Constitution and Supreme Court precedent, what factors would you consider in reaching an outcome? What factors are the most important? What factors are the least important? Can reliance interests in the face of an egregiously wrong decision (say Plessy v. Ferguson (1896)) ever trump the original meaning of the Constitution? If so, when? Why?
In a dispute between the original meaning of the Constitution and the constitutional text, what factors would you consider in reaching an outcome? What factors are the most important? What factors are the least important?
When interpreting the Constitution, the Supreme Court has developed balancing tests for a series of constitutional rights known as the tiers of scrutiny. Many have criticized the tiers of scrutiny, including Justice Thomas (see Whole Women’s Health v. Hellerstedt (2016)) (Thomas J., dissent at 11-13). What are the tiers of scrutiny? Where do they come from? Are they found in the constitutional text or original meaning? Do you have concerns that the Supreme Court can tinker with the tiers of scrutiny to achieve its desired result in any case? If confirmed, and the Court is in the process of creating a new or rectifying a constitutional balancing test, what should be the guiding principle in creating those tests? Text? Original meaning? Precedent? Why?
How would you approach interpreting federal statutes? Do you consider yourself a textualist? What role, if any, should legislative history play in that process? In what circumstances, if any, should legislative history defeat the plain meaning of a statute?
What is your understanding of Chevron and Kisor deference? Why do you think these doctrines exist? Is it common practice for the government to receive deference on statutory interpretation questions when the judiciary’s role is to, as Marbury put it, “say what the law is”? How can these doctrines be defended under Marbury?
Do you have or see any concerns with federal agencies promulgating regulations based on statutes that might be half a century old in a way the agency has never used the statute before? What is your understanding of the Major Questions doctrine? Is it possible to read the Major Questions doctrine as a check on Chevron deference? Or is it better understood as the Court looking for a way to enforce the nondelegation doctrine? (See NFIB v. OSHA (2022)) (Gorsuch J., concurrence at 4-6.)
Is it ever appropriate for the Supreme Court to reach an opinion that is in line with public opinion polling but plainly wrong under the Constitution? Does the Supreme Court derive its legitimacy from public opinion polls or the Constitution?
Stare Decisis (3)
The Supreme Court has stated many times that “stare decisis is neither an inexorable command nor a mechanical formula of adherence to the latest decision.” As you know, one of the biggest issues in a Supreme Court nomination is how a nominee approaches precedent, because only the Supreme Court can overturn its previous decisions. This means that we have no record or any idea how you will approach this issue. How will you approach the Court’s precedents? What is your philosophy when it comes to precedent?
In Ramos v. Louisiana (2020), Justice Kavanaugh identified a series of factors the Supreme Court has used in the past when considering when to overrule a prior decision. The factors he listed were: (1) quality of the precedent’s reasoning, (2) the precedent’s consistency and coherence with previous or subsequent decision, (3) changed law since the prior decision, (4) changed facts since the prior decision, (5) workability of the precedent, (6) reliance interests of those who have relied on the precedent, and (6) age of the precedent. (See Kavanaugh. J., concurrence at 7.)
When considering whether to overrule a prior case, which of these factors do you think would be the most or least important? Why? What factors would you not rely on? Are there other factors that might be important?
What is a super precedent? What makes a case a super precedent? Would you consider Marbury, Brown, or Roe/Casey as super precedents? Where in the Constitution is there a distinction made between precedents and super precedents? When a case becomes a super precedent, does the Supreme Court’s role or factors used in examining whether to reconsider it change? If so, how?
Judicial Independence (5)
Is the independence of the judiciary threatened or at the very least chilled when politicians directly or indirectly threaten judges? And threats can come in a number of ways, right? Let’s explore some of the threats we have seen from the Democratic Party over the past few years.
In March 2020, before oral argument in June Medical Services v. Russo (2020), Senate Minority Leader Chuck Schumer (D-NY) yelled from the Supreme Court steps, “I want to tell you, Gorsuch; I want to tell you, Kavanaugh: You have released the whirlwind, and you will pay the price,…[y]ou won’t know what hit you if you go forward with these awful decisions.” This threat was so obvious that Chief Justice Roberts responded in a written statement saying, “[s]tatements of this sort from the highest levels of government are not only inappropriate, they are dangerous. All members of the Court will continue to do their job, without fear or favor, from whatever quarter.”
Was what Senator Schumer said and did wrong? Why do you think Senator Schumer engaged in these actions? His purpose was to threaten Justices Gorsuch and Kavanaugh, was it not?
In its October 2019 term, the Supreme Court decided New York State Rifle & Pistol Association Inc. v. City of New York (2020). The case involved a 2nd Amendment challenge to New York’s handgun license system. In that case, a member of this committee, Senator Whitehouse (D-RI), filed an amicus brief that was joined by the committee chairman Senator Durbin (D-IL) and two other members of this committee—Senators Blumenthal (D-CT) and Hirono (D-HI). On page 18 of the brief, they wrote, “[t]he Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’”
What did they mean by this? Specifically, what do you think they meant when they said “[t]he the Supreme Court is not well”? And what did they mean by “[p]erhaps the Court can heal itself”? Like Senator Schumer, was the purpose of this brief to threaten the justices? How do you think the justices felt about this? Would threats like this make you consider reaching a different decision? Justice Alito noted it directly in his dissent, so the justices were aware of it. (See Alito, J., dissent at 3.)
Court-packing was a hot topic during the 2020 Democratic presidential primary. Many candidates endorsed it. In fact, there’s currently a bill in the House and Senate called the Judiciary Act of 2021 that expands the Supreme Court from 9 justices to 13. The House bill has 48 co-sponsors, and the Senate has 2. How would you define court-packing? Do these bills threaten the independence of the judiciary? Considering the size of the Supreme Court has been set at 9 since the late 1800’s, is there any other way to look at this other than they want to enlarge the size of the Supreme Court so it reaches different decisions? Doesn’t this bill directly threaten the independence our judicial system is based on?
After refusing to endorse court-packing during the presidential election, in April 2021, President Biden signed an executive order creating a Presidential Commission on the Supreme Court made up of several legal experts to study a host of issues, most importantly, whether to add justices to the Supreme Court. Days after the order was signed, your former boss, Justice Stephen Breyer said, “the court is guided by legal principle, not politics” and would therefore be eroded if the court’s structure were changed in response to concerns about the influence of politics on the Supreme Court. In other words, Justice Breyer does not support court-packing.
Do you agree with your former boss Justice Breyer? Why do you think Justice Breyer came out and said this days after the executive order was signed? Was he trying to put down the idea in response to its popularity in the Democratic Party? If Justice Breyer could come out and provide his opinion on this question, why can’t you? Doesn’t adding justices to the Supreme Court so it reaches different decisions threaten the independence of the judiciary?
President Biden, the 9th Amendment, and Unenumerated Rights (4)
Before President Biden nominated you, he said he wanted a nominee that has a judicial philosophy that “suggests that there are unenumerated rights to the Constitution and all the amendments mean something, including the Ninth Amendment.” What do you think he meant by that? Did President Biden nominate you because you believe these things? Do you believe these things?
As you know, the Supreme Court has never definitively stated or given an interpretation for the Ninth Amendment in its history. Justice Goldberg and two justices provided a framework in Griswold v. Connecticut (1965) for the Ninth Amendment. They said, “the Ninth Amendment shows a belief of the Constitution's authors that fundamental rights exist that are not expressly enumerated in the first eight amendments, and an intent that the list of rights included there not be deemed exhaustive….[t]he Ninth Amendment simply shows the intent of the Constitution's authors that other fundamental personal rights should not be denied such protection or disparaged in any other way simply because they are not specifically listed in the first eight constitutional amendments.”
What do you make of this analysis? What “fundamental personal rights” do you think these justices had in mind? Why do you think the Supreme Court has used the Fourteenth Amendment’s Due Process Clause instead of the Ninth Amendment to find unenumerated rights? What do you make of Judge Robert Bork previously calling the Ninth Amendment an “ink blot”?
When you spoke with President Biden, Vice President Harris, and White House Counsel Dana Remus during the interview process, was there any talk or discussion about your views on unenumerated rights or the Ninth Amendment? Can you describe your understanding of the Supreme Court’s unenumerated rights doctrine from Washington v. Glucksberg (1997) to Lawrence v. Texas (2003) and Obergefell v. Hodges (2015)? In this series of cases, the Court seemed to make up new tests in order to reach the result it wanted. Under Glucksberg’s objectively deeply rooted in our nation’s history and tradition analysis, it seems impossible to reach the outcomes in Lawrence and Obergefell. What is the takeaway from these cases? How would you approach an unenumerated rights case?
President Biden has also said, “[t]he Constitution is always evolving slightly in terms of additional rights or curtailing rights.” What do you think he and other progressive-minded thinkers mean with this statement? Do you agree that the Constitution is “always evolving”? Can you provide some examples of how it has evolved? How does an evolving Constitution work in practice with the Article V process that allows the American people to amend the Constitution?
The Don McGahn Subpoena Case (3)
In Committee on Judiciary v. McGahn (D.D.C. 2019), you held that the House Judiciary Committee could enforce its subpoena issued to former White House Counsel Don McGahn in federal court. But in that ruling, you accept the Department of Justice’s argument that “for two hundred years after the Founding lawsuits between Congress and the Executive branch did not exist, even though disputes between the Legislative and Executive Branches over congressional requests for information have arisen since the beginning of the Republic.” (See page 51.)
How can it be that courts have never been involved in these disputes in our history, but at the same time, Congress can sue the Executive Branch just like any other private individual? Why wasn’t that history dispositive in your analysis? Would you say you reached an originalist outcome? Don’t you think in a separation of powers case as serious as this one, that history should be the most important factor?
Throughout the opinion, you continually characterize the dispute as a typical subpoena case that courts deal with all the time (See pages 27-37.) But, as you know, it was anything but a typical subpoena dispute. One branch of government sued another. The posture of the case raises substantial and obvious separation of powers concerns. Yet, throughout the opinion, you treat Congress like a private individual with no constitutional powers of its own (see pages 83-84), and find it difficult to understand why the Executive thinks Congress has less of a right than a private individual to sue. (See bottom of page 81.)
How could you conclude that for 200 years, the political branches have negotiated these disputes on their own, but at the same time conclude that Congress’s constitutional tools are not important to the analysis? How exactly has Congress gone about getting information from the Executive without court intervention? Why has the Executive Branch ever complied with congressional requests for information if there were no precedents of courts enforcing subpoenas against the Executive branch?
As you know, the foundational element of the Office of Legal Counsel’s analysis under the doctrine of testimonial immunity is that the president is absolutely immune from compelled congressional process. On pages 102-103 and in footnote 30, you take issue with this point. First, you agree with Judge Bates’s analysis in Committee on the Judiciary v. Miers (D.D.C. 2007) and you say this foundational element “stands on shaky footing.” And in footnote 30, you say “it seems unlikely that a president would be declared absolutely immune from compelled congressional process.”
Is it really your position that Congress could subpoena the president, and get a court to enforce it? How far does this theory go exactly? Subpoenaing documents? Confidential communications? Live testimony? In a concurring opinion in Franklin v. Massachusetts (1992), Justice Scalia said, “I think it clear that no court has authority to direct the President to take an official act.” He noted the Court in Mississippi v. Johnson (1867) said “this court has no jurisdiction of a bill to enjoin the President in the performance of his official duties.” In fact, no court in the history of the United States has ever enjoined the president in his official capacity or held him in contempt. Yet, you gloss right over this. You don’t cite Franklin or Johnson or the fact the Supreme Court has never heard a question of this magnitude. You don’t seem to think there’s a separation of powers problem at all. How do you square your analysis with what Justice Scalia said in Franklin or what the Supreme Court said in Johnson? Do you still think there’s no separation of powers problem with Congress going into court, seeking an injunction to enforce a subpoena against the president in his official capacity?
As you may know, the Supreme Court has granted certiorari next term in Students for Fair Admissions Inc. v. President & Fellows of Harvard College. It also granted a companion case against the University of North Carolina. In those cases, the Court will consider whether colleges and universities can use race as a factor in their admissions process.
You have been a member of Harvard’s Board of Overseers since 2016. That board is one of Harvard’s two governing boards. According to Harvard, the board “help[s] to shape the University’s agenda, inquire into the quality and progress of its activities, and assure that Harvard remains true to its mission.” It “provides counsel to the University’s leadership on priorities, plans, and strategic initiatives.”
The federal statute on judicial recusal states: “Any justice … shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”
How will you decide whether to recuse in the case against Harvard University? What factors will you consider? How can you objectively be considered impartial in this circumstance? Isn’t it true that board members have to honor strict confidentiality of the meetings and discussions? And even sign a statement to that effect? Wouldn’t the entire purpose of that be defeated if you heard this case?