After campaigning for president on a promise to nominate the first black woman to the Supreme Court, President Joe Biden made good on that promise when Justice Breyer announced he would retire at the end of the Court’s current term in late June or early July. Before nominating Judge Jackson, Biden said he wanted a nominee with a judicial philosophy that “suggests that there are unenumerated rights to the Constitution and all the amendments mean something, including the Ninth Amendment.” Based on Biden’s record as the Chairman of the Senate Judiciary Committee when Judges Robert Bork and Clarence Thomas were nominated to the Supreme Court, it was obvious he wanted a nominee with a judicial philosophy nothing like Bork or Thomas. In other words, Biden does not want an originalist.
Originalism, or the theory of constitutional interpretation that holds that the Constitution should be interpreted based on how the ratifying public understood it at the time of adoption, is a prerequisite for any nominee to the Supreme Court. Justices that refuse to embrace originalism and see the Constitution as a power-limiting document instead of a power-granting document can quickly become activists constrained by nothing. Each of President Donald Trump’s Supreme Court nominees embraced originalism both before the Senate Judiciary Committee and in their records as lower court judges.
In stark contrast, Judge Jackon’s record reveals she is not an originalist. When she was nominated to the D.C. Circuit a year ago, she told Senator Cruz she did not have a theory of constitutional interpretation, and she refused to reject the theory of a “living Constitution.” But in her Supreme Court confirmation hearing, Judge Jackson rejected “living Constitutionalism” and talked about the importance of interpreting the Constitution based on its original public meaning. Nevertheless, she still rejected the originalist label when asked to describe her judicial philosophy. Instead of a judicial philosophy, Judge Jackson told Senators she had a much more malleable three step “judicial methodology.” Moreover, she refused to say whether her methodology is anything like what is employed by any current or former justice of the Supreme Court.
In her most consequential constitutional law case, Judge Jackson held that the House Judiciary Committee could enforce its subpoena of former White House Counsel Don McGahn in federal court. In reaching this decision, she employed a methodology that was remarkably un-originalist. Miraculously, Jackson agreed with the Department of Justice that for 200 years after the Founding, lawsuits between Congress and the Executive Branch did not occur because they negotiated these disputes. In other words, there was no history of lawsuits of this kind. Instead of this fact playing a decisive role, Judge Jackson disregarded it and held that Congress subpoenaing the Executive Branch is no different than subpoenaing a private individual. She also relegated Congress to that of an ordinary citizen seeking federal court against an unconstitutional action of the Executive Branch. Judge Jackson’s opinion shows a complete misunderstanding of the separation of powers.
One of, if not the most important, votes a Senator takes is to confirm or reject a nominee for the Supreme Court. Based on Judge Jackson’s record, judicial methodology, and what the Democratic Party and far-left activists expect from her, she should not be confirmed.
FreedomWorks will count the vote for Judge Jackson’s nomination to the Supreme Court on our 2022 Congressional Scorecard and reserves the right to score any amendments, motions, or other related votes. The scorecard is used to determine eligibility for the FreedomFighter Award, which recognizes Members of the House and Senate who consistently vote to support economic freedom and individual liberty.
Adam Brandon, President, FreedomWorks