SCOTUS Nominee Judge Ketanji Brown Jackson Grilled Over Abortion Issues

Judge Ketanji Brown Jackson, President Biden’s nominee to the Supreme Court, addressed pointed questions from the Senate Judiciary Committee on the issue of abortion from members on both sides of the aisle.

If confirmed Jackson would be the first African American woman to serve on the high court and would replace Justice Stephen Breyer, who announced his retirement in January.

During the hearing, Jackson addressed a number of questions related to abortion law and her personal beliefs.

While Sen. Marsha Blackburn (R-Tenn.) acknowledged that Jackson had already said it would be “inappropriate” to discuss the matter, Blackburn argued that the nominee’s views on the pro-life movement were clear, given that she “attacked pro-life women” and described them as a “hostile, noisy crowd of in-your-face protesters” in a brief she’d written.

“I’m a pro-life woman,” Blackburn said, and “79% of the American women support restrictions of some type on abortion.”

Blackburn said she therefore found it “concerning” for a Supreme Court nominee to hold “such a hostile view toward a view that is held as a mainstream belief that every life is worth protecting.”

Jackson responded to questions about her “incendiary rhetoric” from Blackburn, noting that the brief being cited was filed on behalf of her law firm’s clients in the late 1990s or early 2000s in relation to a “buffer zone” case. The case focused on a “first amendment question around the degree to which there had to be room around [women seeking] to enter the clinic,” Jackson said, and the statement was written, by her and her colleagues, to advance her client’s argument.

Dobbs v. Jackson

Blackburn continued in this line of argument, by characterizing Roe v. Wade as “an awful act of judicial activism” that continues to be argued in the courts. She noted that if Jackson is confirmed to the Supreme Court, she will be “in a position to apply the court’s decision in Dobbs [v. Jackson Women’s Health Organization].”

That case examines a Mississippi law prohibiting most abortions after 15 weeks.

Blackburn asked Jackson if she would respect the court’s decision, “if it rules that Roe was wrongly decided” and returns the issue of abortion law to states.

Jackson responded that “whatever the Supreme Court decides in Dobbs will be the precedent of the Supreme Court … and I commit to treating it as I would any other precedent.”

Blackburn then asked Jackson about her views on the Constitution and abortion, given that a central question in the Dobbs case is “whether the Constitution protects the right to an abortion.”

Jackson noted that abortion is a right recognized by the Supreme Court as as an “unenumerated” right of the Constitution.

Blackburn argued that the Supreme Court “created the right through Roe v. Wade,” which is a key concern among pro-life women when it comes nominees to the high court.

“We need a justice who will adhere to the text of the Constitution … [and not] justices who are going to invent rights out of whole cloth to serve a political interest,” said Blackburn.

While pressed a number of times throughout the hearing to explain her “judicial philosophy,” Jackson would not pigeonhole herself as either a judge who adheres to an “originalist” view (one who believes the meaning of the Constitution is fixed) or a judge who takes a “living Constitution” approach (arguing that the meaning is dynamic and can change according to new circumstances).

Sen. John Kennedy (R-La.) raised a similar issue when he asked about the definition of a “fundamental right” and the origin of “unenumerated rights.”

Asked whether Congress or the federal judiciary is better suited to making decisions over unenumerated rights, Jackson said the Supreme Court has the “authority” to interpret the law.

Kennedy also asked whether it would be “a prudent course of action to start creating fundamental rights through the Ninth Amendment without consulting Congress.” That amendment, according to certain interpretations, justifies the existence of those “unenumerated rights” that haven’t been explicitly stated in the text of the Bill of Rights.

Jackson said she couldn’t respond to that “hypothetical” question. But when prodded about her views of “judicial restraint,” she noted that the tenet requires that she “not be a policymaker in my decisions.”

Kennedy also asked Jackson about when life “begins” and “when does equal protection of the law attach to a human being?”

Jackson said she didn’t know when life begins and that she sets aside her personal and religious beliefs when ruling on cases.

Roe v. Wade as Precedent?

Democratic lawmakers including Sen. Dianne Feinstein (D-Calif.) also brought up the issue of abortion.

Justice Brett Kavanaugh, a conservative judge appointed by former President Donald Trump, agreed on questioning during his confirmation hearings that Roe v. Wade was “correctly settled,” “a precedent of the Supreme Court,” and a matter that had been reaffirmed several times including in Planned Parenthood v. Casey, Feinstein said.

And Justice Amy Coney Barrett, also nominated by Trump, prior to her confirmation said she would “obey all of the rules,” if asked to decide Planned Parenthood v. Casey, adding that she had “no agenda to try to overrule Casey.”

Asked whether Jackson agreed that Roe v.Wade is “settled as a precedent” and commit to “obey all of the rules of stare decisis (a principle calling on courts to adhere to precedent) in cases related to the issue of abortion,” Jackson said she would.

“Roe and Casey are the settled law of the Supreme Court concerning the right to terminate a woman’s pregnancy,” Jackson said. “They have established a framework that the court has reaffirmed.” Stare decisis, one of the factors the court will consider when revisiting the law, “provides and establishes predictability [and] stability. It also serves as a restraint … on the exercise of judicial authority because the court looks at whether or not precedents are relied upon, workable, in addition to whether or not they are wrong.”

Accolades, Background

Jackson’s nomination has the support of the Fraternal Order of Police and the International Association of Chiefs of Police, among other organizations.

Sen. Sheldon Whitehouse (D-R.I.) quoted the description of retired Judge Bruce Selya, appointed by former President Ronald Reagan, in the Boston Globe: “She has all the tickets in terms of her intelligence, her education, her work experience and her demonstrated judicial temperament. I see some of the same qualities in her that I saw in Ruth Bader Ginsburg — humility, the ability to inspire others in a quiet way, not at the top of her voice. Some people have the capacity to inspire by example and the force of their reason … She is very smart, very well informed, and she’s very hardworking and focused. She gets the big picture.”

Jackson was born in Washington D.C. and grew up in Miami. She graduated from Harvard University and later Harvard Law School. She has served on the U.S. Court of Appeals for the D.C. Circuit, the U.S. District Court for the District of Columbia, and as vice chair for the U.S. Sentencing Commission.

If confirmed, Jackson will be the first former public defender to hold a position on the high court.