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Jay Ambrose is an opinion columnist for Tribune News Service.
Maybe I’ve been fooled, but my inclination is to say confirm her. Confirm Ketanji Brown Jackson as a Supreme Court justice because, during Senate hearings, she demonstrated a firm, decisive and constitutionally correct understanding of what her duties would be.
To put it simply, she is for the rule of law. To put it in more specific court terms, she thinks justices should determine what the Constitution actually says by referring to its specific words (known as “textualism”) and, when necessary, their public meaning at the time they were written (known as “originalism”).
Wow, is this really the nominee of an ideologically devoted Democratic president, someone cheered on by semi-socialist progressives informing us that our exceptional Constitution is a dusty, 234-year-old document left behind by current times? Precisely speaking, they have instructed us to adhere to imprecise interpretations reflecting up-to-date leftist dispositions improving modern-day America, a failed aspiration.
The vain desire is for a “living Constitution” that is actually stuck in a coffin when judicial oligarchs in effect rewrite it to fit their druthers and cheat democracy by avoiding a legal amendment process. After all, agreement by two thirds of both houses of Congress and three-fourths of state legislatures is the proper mode of revision, not a majority of nine appointed people restricted to contrary obligations.
By and large, most Republicans identifying as conservatives embrace the approach that Jackson calls her “methodology.” Democrats on and off the court tend to prefer the fraudulent way out, as in concocting a nonexistent constitutional right for mothers to kill their unborn children any time prior to viability in pregnancy. The progressives deceptively argue they are still heeding an implied constitutional principle, although this much I will concede: Legal questions can be loaded with complications, not least given the issue of precedents.
For instance, Jackson reasonably said in the hearings that adherence to precedents is needed to afford constitutional stability and reliability although she also said new, defensible information and understandings can evolve. She believes Roe v. Wade is settled law and observed that two court nominees of ex-President Donald Trump said as much themselves. Do we now know more about the human life of these womb-bound creatures, maybe?
Jackson has rightly worried Republican senators because, for instance, she has praised a New York Times project asserting that racism defines America more than anything. At the same time, she said her job as a justice would be dealing with law and facts, not with intellectual debate on such matters.
Some Republican senators have gone after her with virulent force on supposedly being a soft judge when sentencing child sex abuse image collectors. She met the accusations with relevant details and counter-facts they chose to belittle or ignore. Despite her excellent performance, the alertness, intelligence and knowledge she showed in the hearings, she did make a grotesque error when she said she could not define a woman.
Is she considering that transgender women should be afforded the specific legal rights of biological women, a betrayal of them and the original meaning of federal law about women’s rights?
Progressive Democrats have blasted critical senators for inciting racial prejudice against this nominee who could be the first Black woman to ever sit on the court. Even if the allegation is bogus and two wrongs don’t make a right anyway, consider that she experienced nothing even close to the abuse of a Trump nominee called a teenage alcoholic sex offender when the only proof was that he had been a teenager, as deep thinkers say. Democrats, some believing separation of church and state means separation of religious people and state, went after a superb female nominee for being Catholic, in the view of this non-Catholic.
The truth is that both sides are fighting political battles when judicial viewpoints are what counts. This nominee may not live up to her words but is likely among the least risky Biden might have picked. She may make history in more ways than one.