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Opinion The two phoniest words you’ll hear during Ketanji Brown Jackson’s confirmation

Senate Minority Leader Mitch McConnell (R-Ky.) and Judge Ketanji Brown Jackson. (Jabin Botsford/The Washington Post)
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Over the multiple days of her confirmation hearings for a seat on the Supreme Court, Ketanji Brown Jackson will have to sit attentively for hours while the 22 members of the Senate Judiciary Committee speechify at her, testing both her endurance and her ability to refrain from rolling her eyes when the likes of Sens. Ted Cruz (R-Tex.) and Josh Hawley (R-Mo.) ascend the heights of inane demagoguery at her expense.

Amid all that pontification, there’s a particular phrase you should watch out for that will likely be repeated dozens of times: “judicial philosophy.” The phrase should raise red flags because it’s a signal that the person using it is about to pull a fast one, either to claim they themselves believe something they really don’t, or to pretend that an attack they’re making on Jackson is far more high-minded than it actually is.

“I want us to vet Judge Jackson’s judicial philosophy,” said Sen. Ben Sasse (R-Neb.), one of the many potential presidential aspirants who sits on the Judiciary Committee. “I don’t want us to attack her as a human.” Senate Minority Leader Mitch McConnell (R-Ky.) claimed, “Judicial philosophy is a key qualification for the Supreme Court.” While noting that there are plenty of “smart lawyers” out there, McConnell argued that instead of applying laws neutrally, “some would rather start with liberal outcomes and reason backwards.”

There you have it: The idea that a judge might have a conservative outcome they want to achieve isn’t even worthy of consideration; only liberals would be so crass. Conservatives, you see, have a judicial philosophy.

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This is comfortable terrain for Republicans because they know that dressing up policy preferences in a phony “philosophy” is a game only they usually play; liberals tend not to bother. Jackson herself was asked about this during her confirmation to the U.S. Court of Appeals for the District of Columbia Circuit; she replied, “I do not have a judicial philosophy per se, other than to apply the same method of thorough analysis to every case, regardless of the parties.”

While liberals sometimes talk about the “living Constitution” — the idea that as society evolves, our understanding of the Constitution changes — they don’t pretend that it’s some kind of guidebook that tells you the “right” ruling in any given case.

But that’s what conservatives claim to possess in their favored “philosophy,” originalism. They say that the original intent of the Framers should be paramount when deciding constitutional questions, and once that intent has been located, the answers to legal questions will reveal themselves, lit from within with the glowing light of divine wisdom.

The truth is that the overwhelming majority of the time, the Framers’ intent is either impossible to discern or utterly irrelevant to the question before us, for the simple reason that they wrote the Constitution almost two and a half centuries ago. What would the Framers think of voter file purges, or regulations on carbon emissions, or the use of facial recognition by police? To even ask is preposterous. Yet conservatives claim to know what Madison and Jefferson would say — and by fortuitous coincidence, their seances with the Framers’ spirits always lead right to their preferred policy outcomes. Funny how that works.

There are other variants of conservative judicial philosophy that are just as likely to demand conservative rulings. “Textualism” requires close readings of the Constitution and legislative texts — unless conservatives don’t like what the text says, at which point the text is discarded. They passionately oppose “judicial activism” and “legislating from the bench,” until the court considers laws they don’t like.

The alternative to all this hogwash would be a little candor. If they wanted to be honest, Republicans could just say that they oppose Jackson because they’re hoping for Supreme Court rulings that advance conservative policy goals — striking down Roe v. Wade, limiting the federal government’s power to regulate, weakening voting rights, diminishing the ability of unions to organize workers — and she is unlikely to provide them.

Instead, Republicans claim with a straight face that they’re deeply concerned that like other liberal court nominees she might be contaminated by policy preferences. This is after insisting the conservative nominees about whom they were so rapturous had no such preferences at all; the likes of Amy Coney Barrett or Brett M. Kavanaugh, they told us, were unsullied by politics, possessed only of an admirably neutral “philosophy.”

When you hear them invoke the words “judicial philosophy,” that’s when you know the scam is afoot. By now, none of us should be foolish enough to fall for it.

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