Some Questions Senators Should ask Ketanji Brown Jackson

Ketanji Brown Jackson.


The Senate will hold confirmation hearings this week for Judge Ketanji Jackson, President Biden’s nominee to the Supreme Court. The majority of questions that senators ask at judicial confirmation hearings is mediocre. Many of the questions are grandstanding, or play to the party base. George Will (conservative columnist) and Washington PostBoth the editorial board and Judge Jackson have great questions that Senators would be wise to address.

These are excerpts taken from Will’s column about the topic:

Article I vests legislative power in Congress. This makes Congress mandatory to locate this power. You would expect that there is. SomeUnconstitutional delegations of legislative power are granted by Congress to executive agencies with discretionary congressional powers. Does the separation of power make sense when Congress gives administrative state entities large powers to regulate private behavior? Should courts or Congress decide whether Congress violates the non-delegation doctrine?…

If there’s no law prohibiting the official from doing so, “clearly recognized law” will apply to them. It means even the smallest factual differences between this case and other cases will effectively exempt the officer from responsibility. Are you open to rethinking qualified immunity?….

2004: The U.S. Court of Appeals of the 10th Circuit affirmed an Oklahoma law that forced online casket vendors to get (expensive, tedious) funeral licenses. Although the court recognized that online retailers were being punished, it was intended to benefit funeral directors. However, they stated in breeziness that “dishing out specific economic benefits” was “the national pastime of local and state governments.” Should there be SomeIs there a judicial surveillance of such activities? Are courts required to take into account obvious rent-seeking motives (using the law to gain private economic gains by restricting competitors’ liberty)?

These are some of the Post’s columns:

The court’s commitment to stare decisis — the principle that the court should only overturn precedent in exceptional circumstances — is increasingly in doubt. Jackson asks when Judge Jackson believes it’s appropriate for justices not to overturn the decisions of previous majorities. The court’s conservative wing is more inclined to support originalism. Which judge Jackson views this philosophy and what should Judge Jackson do to interpret the Framers words correctly?

If her confirmation hearings have been any indication, Judge Jackson is likely to keep it short, especially on substantive issues the court may consider. She should still be able address any questions regarding the structure of the court and its rules. Is it a good idea to allow cameras into the chamber. This is a welcome change. Some Democrats support packing the court with nine or more justices. This is an ill idea and would increase the court’s politicalization. However, some Democrats favor packing the court with more than nine justices. This would increase the court’s politicization. Stephen G. Breyer has supported this reform, the justice Judge Jackson was tapped to replace. Is this what she believes?

Most of these questions (with the exception of that about court-packing, which Republicans might bring up), I doubt will ever be asked. However, we have every reason to hope.

I have a few additions of my own to  Will’s and the Post’s lists:

1. The most pressing legal issue of today is whether the constitutional restrictions that are applied to other government powers should be extended to the immigration restriction. Both the Constitution’s original meaning and text make no distinction between standards applicable to immigration and policies that are applied to it. However, courts frequently read these distinctions into Constitutions.  Is immigration policy worthy of being subject to the same level or less scrutiny than other federal policies? Why?

2. Many lawsuits were filed over the past two years challenging the restrictions placed on liberty in the wake of the Covid-19 pandemic. Are you of the opinion that “public health” policy should be given special consideration by the judiciary or should it get regular judicial oversight like other government policies.

3. Most recent cases concerning allegations of constitutional discrimination on grounds of religion or race have included claims that facially neutral policy must be rejected because they were driven by discriminatory motives. One famous example is the Trump travel ban case. There are many other cases, from litigants on both sides of the aisle. What should the courts do to evaluate such claims? How should courts evaluate such claims?

Question 1 has been adapted to my suggestion as part a symposium that included proposed questions in preparation for the Barrett confirmation hearings. Unfortunately, the Senate didn’t use it. It is still relevant today.