Published February 25, 2022
In selecting Judge Ketanji Brown Jackson to fill Stephen Breyer’s seat on the Supreme Court, President Joe Biden has fulfilled his campaign pledge to nominate the first female African American justice.
Biden selected Jackson for additional reasons, of course. Jackson has impressive credentials, and Biden likely feels confident that Jackson will implement the results-oriented, make-it-up-as-you-go-along “living constitutionalism” that progressives espouse.
Biden has already demonstrated that differences in judicial philosophy justify efforts to oppose the confirmation of the first female African American justice. Back in 2005, he even threatened to filibuster President George W. Bush’s possible nomination of DC Circuit judge Janice Rogers Brown to the Supreme Court.
The left is likely to make accusations of racism and sexism in response to any concerns expressed over Jackson’s vision of the judicial role. But if Senate Republicans assess Jackson on the basis of judicial philosophy, and don’t succumb to political pressure because of her race and sex, they will responsibly fulfill their constitutional duty to advise and consent.
The Democrats have control of the Senate, albeit slim control, so Jackson will almost certainly be confirmed. The process will probably be rather quiet. But Senate Republicans should use the opportunity to emphasize that judging is a craft that is distinct from policymaking. They can reinforce the message that the duty of a Supreme Court justice is to discern and apply the meaning that constitutional and statutory provisions bore when they were adopted, not to rewrite those provisions to advance an ideological agenda.
Ed Whelan holds the Antonin Scalia Chair in Constitutional Studies at the Ethics and Public Policy Center. A former law clerk to Justice Scalia, he is co-editor of “The Essential Scalia: On the Constitution, the Courts, and the Rule of Law” and of two other volumes of Scalia’s work.