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Princeton professors speak on Ketanji Brown Jackson hearing, future of Supreme Court

<h5>Judge Ketanji Brown Jackson is honored at the third annual Judge James B. Parsons Legacy Dinner on February 24, 2020.</h5>
<h6><a href="https://creativecommons.org/licenses/by-sa/4.0" target="_self">Wikicago</a>, CC BY-SA 4.0, via Wikimedia Commons</h6>
Judge Ketanji Brown Jackson is honored at the third annual Judge James B. Parsons Legacy Dinner on February 24, 2020.
Wikicago, CC BY-SA 4.0, via Wikimedia Commons

With the Senate Judiciary Committee set to vote on her confirmation on Monday, April 4, Judge Ketanji Brown Jackson’s Supreme Court nomination process is nearing its completion. If endorsed by the Judiciary Committee, the full Senate will vote before its April 8 recess. If confirmed, Jackson would be the first African-American woman on the Court. 

After Jackson’s committee hearings March 21–24, The Daily Princetonian spoke with University professors to hear their thoughts.

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On Jackson as a nominee

History professor Kevin Kruse emphasized Jackson’s unique background in comparison to other current justices. According to the Washington Post, if confirmed, Jackson would be the first justice with experience as a federal public defender, and upon the retirement of Justice Breyer, the only justice with experience on the U.S. Sentencing Commission. 

Kruse told the ‘Prince’ that Jackson’s role as a public defender “as someone who’s been on the other side of the criminal justice process,” stands out to him. 

“That’s a perspective the Court has lacked for a long time and certainly needs,” Kruse said.

“We often think about the ideological diversity of the court, but I think there’s a kind of professional diversity too. It’s become standard to have one kind of judge from one kind of background. I think having someone with a public defender background is terrific,” he continued. 

Udi Ofer is a visiting lecturer in the School of Public and International Affairs (SPIA) and the national director of the Justice Division at the American Civil Liberties Union (ACLU). Ofer emphasized Jackson’s experience and perspective when describing why he thinks she is an ideal nominee.

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“[Jackson] has the intellectual expertise, the academic background, the practical background, and the personal background of someone who understands the impact of so many decisions made by our nation’s highest court,” he continued. “She’s exactly what the Supreme Court needs right now.”

Ofer noted in his interview that “the last Supreme Court Justice who had significant experience representing criminal defendants was Justice Thurgood Marshall.” Marshall served on the Court from 1967 until 1991.

Paul Frymer, a professor of politics and director of the Program in Law and Public Affairs, offered that Jackson’s experience as a public defender may have complicated her confirmation process.

“The one weakness that she faced is that she is the only judge who was a public defender. So that put her in a spot where she had to represent people who are often not so savory,” Frymer said to the ‘Prince.’ “And some of that became an issue, but the charges leveled by her opponents were all overblown about a couple of cases. It was just theatrics.”

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For Ed Whelan, though, Jackson’s relative lack of experience in constitutional law is a sticking point. Whelan, a former Supreme Court clerk under Justice Antonin Scalia, is the current vice president of the Ethics and Public Policy Center.

Whelan visited campus in February to talk about the replacement of Justice Breyer’s seat in an event hosted by the Princeton Federalist Society.

“She’s had very little experience deciding constitutional questions, and it was very surprising that she said that she wasn’t familiar with the landmark ruling that barred [the Virginia Military Institute] from continuing as a male-only institution,” Whelan wrote in an email to the ‘Prince.’

Three Republican Senators — Sens. Lindsey Graham (R-S.C.), Susan Collins (R-Maine), and Lisa Murkowski (R-Ark.) — voted to confirm Judge Jackson’s nomination to the D.C. Circuit Court in 2021, though Graham has already said he will not vote to confirm her to the Supreme Court. Collins, however, plans to vote to confirm Jackson. 

Ofer said that there are issues being raised now by Republicans, including Graham, that were not brought up during the confirmation hearings in 2021. 

“There are a lot of questions that seem to be more concerned about the cultural wars that are playing out in the United States right now than about a genuine interest in learning more about Judge Jackson’s qualifications,” he said. 

On the hearings

Professors were quick to point out what they saw as the height of polarization of the country and the politicization of the nomination process.

In his interview, Kruse remarked that “in the modern era, the confirmation process has kind of turned into more of a public spectacle than anything.”

“We’ve seen in the past few [confirmation hearings], no matter which party nominates for the Supreme Court, you get half of the Senate… heaping lavish praise on them for their character, and then the other side tends to look for sound bites,” he said. 

Kruse said that this was evident during Jackson’s hearings, citing a comment made by Sen. Ben Sasse (R-Neb.), who said that the “jackassery” seen in the courtroom is “partly because of people mugging for short-term camera opportunities.”

Martin Flaherty, a visiting professor of Public and International Affairs, also noted his disappointment in the way the confirmation hearings have unfolded. 

“The whole process has further descended into tragic comedy. The histrionics of the Republicans, including and especially Princeton’s own Ted Cruz ’92, have been a disgraceful display of racial dog whistling and pandering to their extreme base. The most notable bright spot is the grace, intelligence, and near superhuman self-control of Judge Brown Jackson,” Flaherty said.

Whelan noted that the partisanship of this confirmation hearing fits within a longer-term trend.

Whelan said that for “at least three decades, Senate Democrats, led by Joe Biden, have abandoned the deference model, in which opposite-party senators assess a president’s Supreme Court nominee on intellect, experience, and character, irrespective of judicial philosophy.”

“They instead decisively shifted the Senate’s role to a battle over judicial philosophy. Senate Republicans, with a decade or more of lag, made the same shift. So there is nothing unusual, and there should be nothing unexpected, about Senate Republican opposition to Judge Ketanji Brown Jackson’s nomination,” Whelan said. ​​

On the future of the Court

While professors were excited about the historic nature of Judge Jackson’s nomination, they were hesitant to say she would have an immediate impact on the politics of the Court.

“In terms of the raw numbers, the Court is pretty much a six-three conservative court, and she’s replacing a vacating liberal justice. So overall, in terms of the balance of the court, that won’t have much immediate effect,” Jonathan Kastellec, an associate professor of politics, said. 

However, Kastellec does think that Judge Jackson’s background could have an effect on how the Court views certain cases.

“​​Introducing diversity into a multi-member court of any sort can change the nature of the decision making by making other judges approach different issues in some ways. She will be the first woman African-American justice, which might bring a different perspective in cases in which gender and race intersect,” Kastellec said.

“It’s a powerful, symbolic, and substantive statement of racial and gender inclusion on the court. The court now has more women and more people of color than it’s ever had, and it’s becoming more reflective of America. That’s all really important, and I think that will stand the test of time. It’ll continue to have an influence,” Frymer noted. 

In addition to her identity, Ofer also noted what students can learn from her career path. 

“I hope that the Princeton students will find inspiration in Judge Jackson,” he said. “I hope that she inspires them to stay true to their values.”

He added that, “Princeton students will be inspired to be future public defenders, which I think is one of the greatest callings for this generation and for any generation ... ensuring that everyone is afforded due process and equal protection of the law regardless of the size of your wallet.”

Charlie Roth is a Staff News Writer and Assistant Data Editor for the ‘Prince,’ focusing on local town coverage. He can be reached at charlieroth@princeton.edu or @imcharlieroth on Twitter or Instagram.

Correction: An earlier version of this article incorrectly stated that Edward Whelan is the president of the Ethics and Public Policy Center. In fact, he serves as the group’s vice president. Additionally, an earlier version of this article misattributed two quotes.

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