More than just trading one liberal for another

Many media commentators, and even some U.S. senators, predict that President Joe Biden’s nomination of U.S. Circuit Judge Ketanji Brown Jackson to the U.S. Supreme Court should not draw much attention, much less prompt a floor fight, because putting “KBJ” on the court swaps out one liberal for another. Because it won’t shift the balance of power on the court, we are told it should not be a big deal.

That attitude is profoundly wrong. For one thing, no party or ideology is entitled to a seat on the nation’s highest court. Every nomination should be taken on its own merits. We should not countenance an unqualified nominee or a nominee who views the Constitution wrongly simply because he or she is replacing someone with equally incorrect views about the Constitution. The Senate’s job is to advise and consent in response to a president’s nomination, and senators should not consent to a nominee who will undermine the rule of law simply because their predecessor did the same.

Second, we should be deeply skeptical that Judge Jackson’s replacement of Justice Stephen Breyer is a straight one-for-one trade, one octogenarian liberal for a younger liberal (she’s currently 51 years old) who will vote much the same for the next few decades. As frustrating as he was on the bench, Justice Breyer was no radical. He considered himself a pragmatist, but that did not make him less dangerous.

For a while, lawyers joked that the only way to know whether a Nativity creche or Ten Commandments statue outside a public building was constitutional was to ask Breyer. The laugh line was rooted in his mixed decisions. At some level, it reflected the fact that Breyer revealed at least a degree of open-mindedness about establishment clause and religious liberty issues that some of his more liberal colleagues—Justices Sonia Sotomayor and Ruth Bader Ginsburg—lacked.

In a similar vein, Justice Breyer was an old-school civil liberties liberal who actually believed, for instance, that we should defend the principle of “I disapprove of what you say, but I will defend to the death your right to say it.” And he occasionally recognized the limits of centralized administrative agency power in our federalist system.

But Justice Breyer’s views are no longer in vogue with liberals, which is one reason he never achieved the celebrity status ascribed to pop culture icon “the notorious RBG”—liberal heroine Ruth Bader Ginsburg—or more recently Justice Sotomayor. He was another white male from Harvard interested in the law-and-economics school of administrative law, not the modern-day intersectionality of Kimberlé Crenshaw or the anti-racism of Ibram X. Kendi.

We do not know much about Judge Jackson. She has been a federal appellate judge for less than a year and has only a handful of appellate opinions to her name. Before that, she spent eight years on the trial bench but did not hear many high-profile cases on highly controversial issues. Even on that limited record, those familiar with her temperament and views considered her the most liberal of the three finalists considered for Breyer’s seat by Biden (alongside U.S. District Judge J. Michelle Childs and California Supreme Court Justice Leondra Kruger).

When Jackson was nominated for the Court of Appeals in 2021, senators focused on the few facts we do have from her background. On the one hand, she was on the board of a Christian school that upheld traditional sexual orthodoxy for its staff, though she distanced herself from that during her hearings. On the other hand, while she was a young law firm associate, she helped author a brief for pro-abortion organizations defending laws against sidewalk counseling near abortion centers. Besides that, she primarily worked at large law firms, although she did stints as a federal public defender for indigent criminal clients and on the U.S. Sentencing Commission as well.

The Senate should vigorously scrutinize Judge Jackson’s record and views and fully exercise its constitutional responsibility. It should not abdicate that role on the simplistic view that it’s an even trade without consequence. Today’s legal left is captured by the woke agenda that has taken over the left at large, which is a marked evolution away from the early 1990s “third-way” attitude of Bill Clinton. In his remarks introducing Justices Breyer and Ginsburg, President Clinton stressed their moderate credentials and bipartisan respect. That is not the message the Biden White House is sending—or even wants to send—with this new nomination, and the Senate should not simply pass her through as though it won’t make a difference. Every nominee will sit for a lifetime appointment, and every nomination should be given the same respectful and careful consideration.