AMAC Exclusive – By Seamus Brennan
Following a week of headline-grabbing hearings, Judge Ketanji Brown Jackson’s confirmation as an Associate Justice of the Supreme Court seems close to a foregone conclusion. With a Democratic majority in the Senate and the strong likelihood that centrist Republicans in the mold of Susan Collins (R-ME) and Lisa Murkowski (R-AK) will vote in favor of Jackson’s confirmation, any remaining conservative hope to block Jackson’s appointment to the Court is, at best, extraordinarily slim.
But despite Jackson’s all-but-certain elevation to the High Court, her background, legal record, and testimony during this week’s hearings raise several major red flags that should be of immense concern to the American people.
As several Republican members of the Senate Judiciary Committee noted throughout the hearings, Jackson’s reluctance to reveal either a coherent judicial philosophy or a systematic approach to interpreting the Constitution—particularly at a time when progressive legal theories like living constitutionalism and Critical Race Theory (CRT) are on the upswing—is highly disconcerting. While insisting that she had not developed a judicial philosophy and had not even “studied the judicial philosophies” of other Supreme Court justices, Jackson did pay lip service to conservative legal terms like “adherence to text” and “original public meaning” when pushed by some Republican questioners.
But should Senate Republicans really believe that President Biden—who fiercely opposed Judge Robert Bork’s appointment to the Supreme Court when he was chairman of the Judiciary Committee, solely on the basis of Bork’s “doctrine of original intent”—is now pushing a nominee who embraces a similar interpretative legal theory?
Democratic members of the Judiciary Committee similarly opposed each of President Trump’s three Supreme Court appointees in large part because of their originalist philosophies. Yet, oddly, not a single Democrat on the Committee challenged Jackson’s ostensible endorsement of the Constitution’s “original public meaning” during this week’s hearings.
As Thomas Jipping, a senior legal fellow at the Heritage Foundation, wrote, “There are serious reasons to doubt that Jackson’s embrace of originalism this week accurately previews how a Justice Jackson would approach her cases.” He continued: “That leaves the likelihood that the Biden administration and its liberal allies have indeed found the kind of justice they were looking for all along.”
But judicial philosophy was not the only topic Jackson was disinclined to discuss during her hearings. When asked by Senator Marsha Blackburn (R-TN) if she could “provide a definition for the word ‘woman,’” Jackson responded blithely with “No. I can’t… I’m not a biologist.”
Moreover, as Senator Ted Cruz (R-TX) revealed, since 2019, Jackson has served on the school board of trustees at Georgetown Day School. In the Winter 2019/2020 edition of the school’s magazine, Jackson expressed that—since becoming a board member—she has “witnessed the transformative power of a rigorous progressive education that is dedicated to fostering critical thinking, independence, and social justice.”
Georgetown Day School also assigns books and course materials directly inspired by Critical Race Theory, including Ibram X. Kendi’s How To Be An Anti-Racist, Critical Race Theory by Richard Delgado, White Privilege: Unpacking the Invisible Knapsack by Peggy McIntosh, and a video entitled “The Urgency of Intersectionality,” produced by leading CRT “scholar” Kimberlé Crenshaw. Yet, even given the inclusion of this content in the school’s reading materials and the school board’s recent execution of an “anti-racism action plan,” Jackson curiously told Cruz she was unaware that Georgetown Day School had included any material relating to CRT in its curriculum.
Though Jackson was eager to cast these connections aside as merely incidental, her own record suggests otherwise. In January 2020, she gave a speech praising Derrick Bell—widely considered to be the father of CRT—who has written that the Constitution is comparable to “roach powder” and whose personal motto is reportedly “I live to harass white folks.” In her speech, given at the University of Michigan Law School, Jackson praised Bell’s book, Faces at the Bottom of the Well, which journalist Christopher Rufo describes as being “foundational to critical race theory.” Furthermore, when Jackson was at Harvard Law School (at which point Bell was also a professor there), she wrote her thesis on “the hands of oppression” and the law. All of this indicates that her worldview—at least as recently as 2020 when she gave her speech—was closely intertwined with that of Bell and other leading proponents of CRT.
As law school curricula and the broader legal landscape descend further into the realm of CRT and “social justice”-oriented legal thinking and away from the traditional American notion of equal and impartial justice under the law, these comments should—at the very least—raise the alarm. Do Americans want a Supreme Court justice who is so clearly connected to CRT and its vision of American society that is so wildly out of line with mainstream Americans? Do they truly want one of the nine justices of the High Court to have her arms linked with left-wing radicals who contend the United States and its laws are systemically racist and that there is no fundamental difference between men and women?
In a recent Common Sense article, Aaron Sibarium observes that “Critical race theory, as it came to be called in the 1980s, began as a critique of neutral principles of justice. The argument went like this: Since the United States was systemically racist—since racism was baked into the country’s political, legal, economic and cultural institutions—neutrality, the conviction that the system should not seek to benefit any one group, camouflaged and even compounded that racism. The only way to undo it was to abandon all pretense of neutrality and to be unneutral. It was to tip the scales in favor of those who never had a fair shake to start with.”
But more recently, Sibarium writes, CRT became “more than mainstream in America’s law schools. It was mandatory.” And now, CRT has made its mark even on the American judiciary: some judges, he continues, “have begun to see themselves not as impartial adjudicators, but as agents of social change.”
Is it far-fetched to fear that Jackson—who graduated from Harvard Law School (the birthplace of CRT) and has spoken out publicly in favor of one of its foremost architects—sees herself as an “agent of social change”? Is it implausible to think that the same judge who claimed not to have a judicial philosophy and who refused to define the word “woman” before the Judiciary Committee would infuse progressive gender ideology and CRT into her legal opinions? Is it difficult to believe that, if confirmed, Jackson would bring these very left-wing theories and ideologies to the highest court in the land?
After what we learned about Judge Jackson this week, none of these possibilities seem far fetched—and her testimony gave plenty of reason to suspect she was less than forthcoming about her true views. It is hard to see how any senator who claims to be conservative, to care about an independent judiciary, and to cherish the sacred practice of equal justice under the law could even consider voting yes on her nomination.
Justice Clarence Thomas warned in a lecture at the University of Notre Dame in the fall of 2021 that Americans “should be careful destroying our institutions because they don’t give us what we want when we want it.”
“I think,” he continued, “we should be really, really careful.”
As any on-the-fence senators continue to deliberate how they might cast their vote on Jackson’s confirmation in the coming weeks, the American people should hope they heed Thomas’s advice.