As I’ve separately contended, some of the arguments being made against President Biden’s nomination of Judge Ketanji Brown Jackson are unworthy. Nevertheless, though it seems certain that she will be confirmed, her progressive judicial philosophy is a meritorious basis to vote against her, for the reasons outlined by Ed Whelan last week.
I could not disagree more with the assertion of a moderate Republican group of Judge Jackson’s supporters that “the question for the Senators is not whether this is a nomination that they would make, but whether the President has put forward a nominee well qualified to serve on the Supreme Court.” (See the letter in Ed’s post, linked above.)
That is more analogous to the question for senators with regard to nominees the president puts forward for executive-branch positions. While such positions involve critical duties, the executive appointee’s task is to carry out the elected president’s policies; thus, the principal confirmation issue is whether the nominee has the intellect, competence, and character that befits the position of trust, not whether we agree with the nominee’s politics or would ourselves have chosen the nominee.
Lifetime judicial appointments are very different, and those to Supreme Court seats are obviously significant — I hesitate to say “the most” significant because I believe a bad district judge, who is a court of one, can do more damage than a bad Supreme Court justice, who deals with many fewer cases and whose meanderings will rarely be decisive.
The most salient qualification for an American judicial appointment is commitment to applying the law consistent with what it was understood to mean when adopted. A judge who cannot be relied on to do that usurps powers that belong to the political branches, the states, or the people. Regardless of how intelligent, competent, and scrupulous the nominee may be, that is not tolerable in a judge. The willingness of Republicans to tolerate it is a consequential dysfunction in our system.
I thus found myself chuckling at the moderate Republicans’ “hope that, for a change, Judge Jackson’s confirmation process can be a moment of consensus around a truly excellent person who will add diversity and so much more to the Court.” The consensus that we should demand is that Judge Jackson be treated with the respect and admiration she deserves, despite philosophical disagreements. The norm should be that the confirmation process is a model of civil debate and exploration regarding those disagreements, rather than the character assassination to which Democrats habitually subject Republican nominees.
Unless and until (a) Democrats end that destructive practice and (b) we arrive at a broad bipartisan agreement about the proper role of judges, it is not possible to have a consensus that intelligent, competent people of truly excellent character should be confirmed. Such a consensus would omit consideration of the most vital question.