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The “methodology” of Judge Ketanji Brown Jackson versus interpretative philosophy

Justice Ketanji Brown Jackson testifies during the Senate Judiciary Committee confirmation hearing on her Supreme Court nomination, on Capitol Hill in Washington, DC on March 22, 2022. (Michael A. McCoy/Reuters)

Characteristically, Dan hits the nail on the head when describing how Judge Ketanji Brown Jackson and Judiciary Committee Democrats (particularly Chairman Dick Durbin) attempted to deflect the central issue from his judicial philosophy — assuming it has one, which I dare say most of the time. we believe it does.

I also agree that it is a great triumph of the originalist school of interpretation (championed by Justice Scalia, Justice Bork, Ed Meese and other luminaries) that even progressive judges now acquiesce in the precept that because that judges are expected to apply existing law rather than legislate new law, the judge must consider the original understanding of the law – although I note that despite this nod, progressive judges tend to describe the understanding original as one factor and reserve the discretion to consider others. I’m not convinced they converted. Judge Jackson is no exception.

It seems to me that Judge Jackson spent a lot of time preparing for this series of questions on judicial philosophy. His favorite counter is to pivot to his “methodology” when the question of interpretative philosophy arises.

She has already done it several times. Essentially, she describes judgment as a “mechanical” exercise (as Adam Liptak put it in the New York Times). She said she had “not really a philosophy, more a methodology”, in which she reports on “three inputs”, which are “the arguments of the parties, the facts of the case and the law which s applies in each case. This, she argues, eliminates “my personal opinions.”

Everything is fine. Yet it should be obvious that a method for deciding issues is something very different from interpret “the applicable law” in the case. What Republicans have to pressure her is how she determines that. After all, she says it’s part of her “in all cases” method, to ensure she’s applying an objective law rather than intervening in her own preferences.

The methodology riff is nice, but it doesn’t answer the central question.

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