Judge Ketanji Brown Jackson appears to be on track to become the first black woman on the United States Supreme Court. What kind of replacement will she be for departing Justice Stephen Breyer?

No one can honestly question Jackson’s qualifications for the High Court. She is a Harvard-educated, hard-working woman with experience as a federal district court and appellate judge. She is known for focus, intelligence and dedication.

But what have we learned so far through the Senate Judiciary Committee’s confirmation hearings? Here is a summary of the primary concerns that have surfaced, and a bit of perspective on each one.

1. The Mic Drop Moment: Jackson Can’t Define the Word “Woman”

Is it that she can’t, or that she won’t? Just in case you missed it, here’s what happened:

Senator Marsha Blackburn (R-Tenn), to Jackson: “Can you provide a definition for the word, “woman?”

Jackson: “Can I provide a definition? No. I can’t.”

Sen. Blackburn: [looks up, puzzled] “You can’t?”

Jackson: “Not in this context [nervously laughing]. I’m not a biologist.”

Most of America is rightly appalled by the fact that a highly-intelligent, highly-educated woman like Judge Jackson would be unable to define such a basic word. Young children can easily distinguish between “man,” and “woman.”

Public officials, however, are wary of articulating the basis for doing so, lest they be shunned by the woke “progressives” who now deny one of the most basic aspects of human personhood.

But before we get too worked up about Jackson’s inability or refusal to define womanhood, we should take heart in her rationale. “I’m not a biologist,” she said. With this simple statement, Jackson acknowledged that “male” and “female” are strictly matters of biology, rather than feelings or desires.

2. Support for Critical Race Theory?

Conservative Senators like Sen. Ted Cruz (R-Texas) questioned Jackson about Critical Race Theory. She said she has never studied CRT, and that she would not rely upon it if she served on the Supreme Court.

Some have based concerns about Jackson’s support for CRT on the fact that she serves on the board of Georgetown Day School, a private school that ascribes to, and teaches, the theory. I think it’s a stretch to identify a board member with every theory taught by the school she serves, or with every book in its library.

However, in a 2015 speech, Jackson stated that sentencing (her particular area of expertise) melds together many areas of law, “including critical race theory.” That is surely a reason for concern.

According to Alliance Defending Freedom, “Critical Race Theory (CRT) teaches that people are either “oppressor” or “oppressed”, “good” or “bad” based on their race. It then claims that the only way to stop racism is to tear down existing institutions and overthrow and replace our constitutional form of government.”

Even assuming Jackson would never go so far as to advocate overthrowing the government, if she really does buy in to CRT, it’s a red flag. A belief that race alone brands people as “oppressed” or “oppressor” doesn’t lend itself to unbiased decisions.

3. Soft on Crime?

This one is a real puzzle.

Senator Josh Hawley (R-Mo) pointed out that in each of seven cases involving child pornography, Judge Jackson sentenced the offenders to less jail time than both federal guidelines and the prosecutors’ recommendations.

I find this inexplicable. And terrible. It makes Jackson less likeable as a person. But will it affect her performance as a Supreme Court Justice? Probably not, since at that level a judge isn’t in the business of sentencing.

Maybe this one isn’t a deal-breaker, but it does raise some unsettling questions.

4. Why Won’t She Tell Us Her Judicial Philosophy?

If there was one category of questions the committee was certain to ask, it was surely the “judicial philosophy” line. In an age where some judges believe in an “organic Constitution” and openly use their positions to foster social change, it’s important to know how a prospective Justice will interpret and apply the law.

But when the inevitable questions came, Jackson wasn’t forthcoming with an answer. She said that her “philosophy” is her “methodology,” which is to be neutral, understand the facts, and apply the law.

That isn’t a “philosophy” at all; it’s just the job description of a judge. Clearly, Jackson doesn’t want to be pinned down with words like “originalist” or “progressive.” And yet, some of what she said was encouraging.

For instance, she stated, “I do not believe that there is a living Constitution in the sense that it’s changing and it’s infused with my own policy perspective or the policy perspective of the day.” Then she said, “The Supreme Court has made clear that when you are interpreting the Constitution, you’re looking at the text at the time of the founding and what the meaning was then as a constraint on my own authority. And so I apply that constraint. I look at the text to determine what it meant to those who drafted it.”

We might question whether she really means it, but as far as a judicial philosophy, that’s about as good an answer as any.

The Verdict?

Yes, the hearings have given us some reasons to be concerned about a Justice Jackson. We should always be concerned. After all, most of us were confident about Chief Justice Roberts, but he ended up deciding some pretty important cases in ways we didn’t expect.

Perhaps it’s helpful for us to ask, “Could we imagine getting a better nominee from President Biden?” I’m not sure I can. And I’ve been called a hopeless optimist, but if Jackson really believes what she says she believes, I see lots of reason for hope here.

 

Rita Peters is a constitutional attorney, the author of Restoring America’s Soul: Advancing Timeless Conservative Principles in a Wayward Culture and co-host of the weekly radio program, “Crossroads: Where Faith and Culture Meet.”