The Fix
Analysis

Five questions Ketanji Brown Jackson could face in her Supreme Court hearing

And how she could dodge them, thanks to precedent paved by previous nominees

Supreme Court nominee Ketanji Brown Jackson will be in the spotlight as she takes senators’ questions at her confirmation hearings.
Supreme Court nominee Ketanji Brown Jackson will be in the spotlight as she takes senators’ questions at her confirmation hearings. (Jabin Botsford/The Washington Post)

When Judge Ketanji Brown Jackson appears before senators for her confirmation hearing to be the next Supreme Court justice, she’ll face a number of friendly Democrats — and some firebrand Republicans who are expected to ask her heated questions about race, ethics and her background as a public defender.

But Jackson has lots of recent precedent to avoid answering even the most basic questions. Previous nominees, especially recent ones, made it a practice to constantly dodge questions about what they believe and even long-decided cases. They came under a great deal of criticism from the other party for it, but not enough that it derailed their nominations.

Here are five of the most hot-button questions Jackson is likely to face in her confirmation hearing, and how she might respond — if at all.

1. How does race inform your decisions?

The background

Jackson actually already got asked a version of this in June, in her confirmation hearing to sit on the U.S. Court of Appeals for the D.C. Circuit, often referred to as the second-highest court in the nation.

It’s a delicate question that risks making the senator who asked it look hyper-focused on her race. Already, some conservatives have framed Jackson’s nomination as something she likely only got because President Biden promised to pick a Black woman — despite the fact other presidents, including Republicans, have picked a nominee in part for their identity. And she’s got a background made for a Supreme Court nominee.

“I think Republicans should tread very lightly here,” said Mike Davis, who advised Republican senators on confirmation hearings and now heads the conservative judicial advocacy group, the Article III Project. “Judge Jackson went to Harvard for undergrad, Harvard for Law, clerked on the Supreme Court, and she’s been a federal judge for almost a decade and before that she was a serious lawyer.”

Last year, Sen. John Cornyn (R-Tex.) asked the race question this way: “Since our Democratic colleagues seem to be putting so much emphasis on race, I just want to ask this question … what role does race play, Judge Jackson, in the kind of judge that you have been and the kind of judge that you will be?”

How she might answer it

In the exchange with Cornyn, Jackson responded that she doesn’t let race influence her decisions, but acknowledged that being a Black woman affects how she sees the world: “I’ve experienced life in perhaps a different way than some of my colleagues because of who I am, and that might be valuable — I hope it would be valuable — if I was confirmed to the court.”

She might wait for Republicans to bring up her race. Or she could try to confront it on her own, like then-nominee Amy Coney Barrett did in 2020 on questions about her adherence to Catholicism:

“I have a life brimming with people who’ve made different choices, and I’ve never tried to impose my choices on them. And the same is true professionally in how I apply the law.”

[Americans divided over whether first Black female justice would make a difference]

2. Will you recuse from an affirmative action case coming before the court about Harvard University?

The background

This is another tricky question for both the asker and Jackson, because the question touches on thorny issues of race and judicial ethics. The Supreme Court has agreed to hear what could be a landmark affirmative action case this fall, questioning the affirmative action policies at Harvard University and the University of North Carolina at Chapel Hill.

Republicans argue that because Jackson went to Harvard and for the past six years she’s served on a governing board for the school, she should sit out what could be the first consequential case of her tenure. But Jackson is far from the only Harvard connection on the court. Four current Supreme Court justices are Harvard Law grads, several were paid to teach there, and Justice Elena Kagan was dean of the school.

Some observers feel like this question is a thinly veiled attempt to call into question her ability to be a judge because of her race, by asking a Black woman if she should sit out an affirmative action case. “One thing to expect in these hearings is for Republicans to treat her differently than they would a White nominee,” said Michael Gerhardt, who has advised Democratic senators on Supreme Court confirmation hearings and is now at the University of North Carolina Law School.

How she might answer it

Jackson has an easy out here, and it’s one many nominees have taken before: She can say that because the case is coming before the court, she can’t say how she’d rule now — including whether she’d recuse herself — because it wouldn’t be fair to the litigants.

That’s called the ‘Ginsburg rule’ after the late Justice Ruth Bader Ginsburg, who said at her confirmation hearing: “[A] judge sworn to decide impartially can offer no forecasts, no hints …” (Though in that same hearing, Ginsburg was quite forthcoming about her opinions on issue like abortion and affirmative action and gender discrimination.)

3. How would you rule on Roe v. Wade?

The background

There is no federal abortion law. This summer, the Supreme Court could determine the future of Roe v. Wade, and whether states must allow abortion until a fetus is viable outside the womb, or about 24 weeks. While hearing a case about Mississippi’s 15-week ban, conservative-leaning justices signaled they’re willing to roll back those abortion protections, and they’ve made several decisions that have allowed a six-week abortion ban in Texas to stay in place.

If confirmed, Jackson would join the court after it decides this Mississippi case. But if the court doesn’t knock down Roe entirely, it’s likely that red states will try to bring even more challenges to abortion protections in upcoming terms.

In his 2017 confirmation hearing, Justice Neil M. Gorsuch took the Ginsburg rule to new heights, refusing to answer basic questions about cases that could be coming before the court and nearly any past case — like an 1800s case about congressional power, or whether he explicitly agreed with Brown v. Board of Education, the 1950s case that ended racial segregation in schools.

“I think they dodge these questions,” Gerhardt said, “because from either the administration’s point of view or from the nominee’s point of view, they don’t agree with everything in those cases and therefore they’re not going to sign off on them. But they’re not going to telegraph that.”

Barrett was similarly vague when asked if she agreed that Roe v. Wade, which provides a constitutional right to have an abortion, is super precedent, or a decision that is so ingrained in American life that it can’t be overturned. Barrett defended scholars who argued, in her words: “that doesn’t mean that Roe should be overruled, but descriptively it does mean that it’s not a case that everyone has accepted.” This December, Barrett was one of four conservative justices who seemed ready to overturn at least abortion protections — if not Roe v. Wade entirely.

[What the Supreme Court justices have said about abortion and Roe v. Wade]

How she might answer it

The stakes are much lower for Jackson’s nomination than they were for Gorsuch’s and Barrett’s. Jackson’s nomination won’t change the balance of power in the court, since she’s replacing a liberal. With or without her, conservatives have the votes to undo Roe v. Wade if they decide to.

But we still could expect her to be pressed by senators on both sides of the aisle about her views, as a way to see how forthcoming she is. In response, for example, Jackson could say something like: “Based on the Ginsburg rule, and to protect my judicial independence, I’m not going to comment on what I think of this case.”

4. Have you ever represented a terrorist?

The background

This question could derive from Jackson’s unique past for a Supreme Court nominee. She was a public defender for years, serving as a lawyer for the accused who can’t afford to pay for their own attorney. (No current justice has served as a public defender.)

As The Post’s Ann Marimow and Aaron Davis report, she kept an attorney convicted of tax fraud out of jail. Jackson successfully argued against a federal charge for a man convicted of having an illegal gun in his home.

She defended prisoners held in Guantánamo Bay, Cuba. She also served on a sentencing commission in the Obama administration that ended up lowering federal drug sentences. It all paints a picture, Republicans say, of a judge who has been too easy on criminal defendants.

“[T]he soft-on-crime brigade is squarely in Judge Jackson’s corner,” Senate Minority Leader Mitch McConnell (R-Ky.) said on the Senate floor on Tuesday.

Republicans aren’t united on this strategy, though. "I’m not going to criticize her for any client she’s represented. We’ve all represented clients that we didn’t agree with and in some cases, didn’t even like,” Sen. John Neely Kennedy (R-La.) told The Post’s Seung Min Kim.

How she might answer it

There isn’t a lot of history to pull from, because she’s the first Supreme Court nominee in recent history to represent criminal defendants (despite the fact that the court regularly hears cases where the lives of convicted criminals are in their hands). Jackson has credited her work as a public defender as helping her develop empathy.

Also, Jackson can point out that as a judge, she sentenced people to prison in high-profile political cases. She sentenced a North Carolina man who fired a rifle inside a D.C. pizza restaurant based on QAnon conspiracy theories to four years in prison. She also sentenced a congressional staffer accused of leaking secrets to the New York Times to two months in prison, even though members of Congress asked for leniency.

She’s also been endorsed by the Fraternal Order of Police.

As far as the Guantánamo work, she’s tried to distance herself from that. In her confirmation hearing last year to the D.C. Circuit Court, Jackson emphasized that, as an appointed federal public defender, she was mainly writing briefs (rather than arguing in a courtroom), and that the briefs she wrote represented the views of her clients, not herself.

5. How was your decision on Donald McGahn not judicial activism?

The background

Republicans think there are several rulings from Jackson as a judge that indicate she had a politicized approach to the bench.

One of her big decisions was on separation of powers in the Trump era: In 2019, Congress was battling with Trump White House counsel Donald McGahn about whether he should testify to the House Judiciary Committee. The case came before Jackson, who soundly rejected McGahn’s arguments that he had immunity from testifying. In a lengthy opinion, she wrote this well-known line: “The primary takeaway from the past 250 years of recorded American history is that Presidents are not kings.”

Compare that, Republicans say, to 2015, when she decided a former Hillary Clinton aide didn’t have to explain why he had work emails in his personal account.

Republicans have also pointed out that Jackson was the favorite pick of many liberal groups.

How she might answer it

She’s issued rulings that cut both ways politically. In one major case, she ruled for the Trump administration by allowing his border wall to continue to be built in New Mexico, despite the protests of environmental groups. Jackson could respond by reminding lawmakers that “my entire career reflects a consistency to adhering to the law, regardless of politics. I’ve tried to decide each case fairly.”

When Barrett came under criticism for being too conservative during her confirmation, she tried to distance herself. “If I were confirmed, you would be getting Justice Barrett, not Justice Scalia,” she said of the late Justice Antonin Scalia, one of the most conservative justices on the court, and her mentor. (That’s despite, when accepting her nomination, she said of Scalia: “His judi­cial philo­sophy is mine, too — a judge must apply the law as writ­ten.”)

About this story

Video editing by Blair Guild. Design and development by Leo Dominguez. Editing by Madison Walls and Kevin Uhrmacher.

Updated March 19, 2022

Biden’s Supreme Court pick

The nominee: The president named Ketanji Brown Jackson, a judge on the D.C. federal court of appeals, as his first Supreme nominee. She would be the first Black woman justice in the court’s history.

Analysis: Race, Jackson’s work on Guantánamo detainee cases, her ruling against Trump and support she received from a court-packing group are all potential issues that may arise in this confirmation fight.

What it means: The Democrats have a chance to replace the oldest of three liberal justices on the Supreme Court ahead of the 2022 midterm elections.

What’s ahead: Republican senators have not agreed on a strategy for questioning Jackson or even whether they have a strategy. Privately, some have argued that going after Jackson is not worthwhile politically.

Show More