Judge Ketanji Brown Jackson of the U.S. Court of Appeals for the D.C. Circuit is President Joe Biden’s choice to replace retiring liberal Supreme Court Justice Stephen Breyer.
She was considered a safe choice, because she passed through her confirmation process for the appellate court last year, and because Biden has stressed the historic nature of her candidacy: Jackson is the first black woman to be nominated to the nation’s highest court.
But there are several questions she must face.
1. Does she believe current penalties for sex offenders are too harsh? Sen. Josh Hawley (R-MO) released a list of Judge Jackson’s opinions, writings, and thoughts on the subject last week, and was immediately hit with so-called “fact checks,” few of which could question his facts, but struggled to provide the “context” for her views. Judge Jackson needs to be asked directly why she handed down lenient sentences in some cases, and why she seemed open to reducing sentencing guidelines.
2. What does Judge Jackson think of the racial and gender criteria of her own nomination? The Supreme Court has ruled that the kind of racial and gender discrimination that President Biden used in selecting her is unconstitutional when used for most ordinary jobs. What does she think of that? How would she make the distinction? And can she be impartial, given how she was selected, when ruling on cases like a challenge to Harvard’s race-based affirmative action admissions?
3. Does Judge Jackson support Critical Race Theory? Just two years ago, Jackson gave a speech at the University of Michigan Law School in which she cited Derrick Bell, one of the founders of Critical Race Theory, as one of her major influences, even citing his radical book, Faces at the Bottom of the Well. Does she agree with Critical Race Theory that America is fundamentally racist, that our Constitution is racist, and that racism persists in nearly all of our institutions?
4. Does Judge Jackson agree with the “1619 Project” that America was founded on slavery? Another influence that Judge Jackson cited in her Michigan Law School speech was the fraudulent “1619 Project” of the New York Times and author Nikole Hannah-Jones, which falsely claimed that the American Revolution was fought to defend slavery. Does the judge agree with that claim? Was America founded on slavery? And should children be taught by the “1619 Project” that it was so?
5. Does Judge Jackson believe, as Black Lives Matter does, that police are guilty until proven innocent? In that same Michigan Law School speech, Judge Jackson cited her “favorite civil rights photograph of modern times,” which was taken at a Black Lives Matter protest in 2016 Baton Rouge, Louisiana. The alleged victims in that case, who were killed by police, were both armed at the time, and the officers involved were ultimately vindicated. Can she be fair toward law enforcement?
6. Does Judge Jackson believe abortion has had a disproportionate impact on the black community? We know that Judge Jackson is pro-choice; there is no way she would have been nominated otherwise. And we know she will try to avoid talking about Roe v. Wade, or about any of the abortion cases winding their way through the courts. But given the way she was selected, it seems appropriate to ask her about the impact of mass abortion on the black community, and black women.
7. Does she believe that the court should remain at nine Justices? As Democrats have proposed various forms of court-packing, Justice Breyer, whom Jackson would replace, has often been a lone voice of reason, telling liberals to “think long and hard” about the consequences of what they have been proposing. Does Judge Jackson agree with Justice Breyer — and with the late Justice Ruth Bader Ginsburg, another court-packing skeptic? Or does she agree with the left-wing legal world?
8. Does she believe the Iran deal is constitutional if it avoids the Senate? The Treaty Clause of the Constitution requires all major international agreements to be ratified by a two-thirds majority vote in the Senate before taking the force of law. President Barack Obama avoided the Senate and submitted the original Iran deal to the United Nations instead. With another Iran deal looming in the coming days, can the Biden administration be taken to court if it tries to repeat what Obama did?
9. Are liberal judges abusing the Chevron doctrine? This seemingly obscure doctrine, handed down by the Court in the Chevron USA v. NRDC case in 1984, is a major problem: it gives the executive branch the power to interpret legislative statutes and requires the judiciary to defer to it. Some research has shown that while conservative judges stick to the rule as precedent, liberal judges are more likely to overturn conservative policies. Should the Court therefore end the doctrine?
10. Can we have rule of law with an open border? We have seen some 2 million migrants flood into the country across the southern border since Biden took office. The administration has repeatedly lied to the public saying that the flood is seasonal, or that arrested migrants show up for their court dates. Given this flagrant, ongoing abuse of the legal system, including the immigration courts, is the crisis on the southern border a threat to the rule of law, which Judge Jackson must uphold?
There are other questions, too: whether she is willing to follow Breyer’s example of upholding religious liberty; whether she will support the Court’s previous decisions upholding the Second Amendment; and even whether she thinks the Court ought to have taken up the 2020 election challenges, which could at least have set some doubts aside.
It will be up to Republicans to find the courage to confront a historical nominee, risking charges of sexism and racism, and to challenge her on her views.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the recent e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. His recent book, RED NOVEMBER, tells the story of the 2020 Democratic presidential primary from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.
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