Pro-Life Legal Experts Say Biden’s Supreme Court Pick Ketanji Brown Jackson Is No Moderate
The Supreme Court nominee's record raises questions about her stance on abortion and her judicial philosophy.
WASHINGTON — As the U.S. Senate prepares to evaluate President Biden’s first pick for the Supreme Court, pro-life legal experts assert that she is a far-left choice who will likely be no friend to the movement defending the rights of the unborn.
Robert George, the McCormick Professor of Jurisprudence at Princeton University, told the Register that Jackson’s jurisprudence “is very much in the progressive mode that understands courts as licensed to rule in ways that will advance progressive political causes, cases like Roe v. Wade, for example.”
If confirmed, the D.C. Circuit Court of Appeals judge’s appointment would not alter the court’s 6-3 conservative supermajority, as she would replace Justice Stephen Breyer, the author of three landmark decisions that overturned state laws restricting abortion and has otherwise been regarded as a somewhat moderate liberal.
Nevertheless, questions have been raised about whether she might move the court farther to the left, given her record and the groups pushing her appointment.
“I voted against confirming Judge Jackson to her current position less than a year ago,” said Senate Minority Leader Mitch McConnell after Biden announced his choice. “Since then, I understand that she has published a total of two opinions, both in the last few weeks, and that one of her prior rulings was just reversed by a unanimous panel of her present colleagues on the D.C. Circuit.”
McConnell asserted that Jackson was “the favored choice of far-left dark-money groups,” a claim repeated by Sen. Lindsey Graham, R-S.C., who had pressed for Biden to select District Judge Michelle Childs, from his home state South Carolina.
A graduate of Harvard Law School, where she was the supervising editor of the Harvard Law Review, Jackson also clerked for Breyer and served as a public defender and then a district-court judge.
In 2021, the Senate confirmed her nomination to the D.C. Circuit Court of Appeals.
Groups that have set the Democrat Party’s priorities for criminal-justice reform and the Supreme Court have applauded Jackson’s past record as a public defender and vice chair of the U.S. Sentencing Commission.
“Jackson supported Sentencing Commission action to make retroactive a reduction in penalties for crack cocaine, resulting in over 12,000 people being eligible to request reduced sentences,” Demand Justice, a group that advocates for criminal-justice reform and packing the Supreme Court, stated on its website.
And NARAL Pro-Choice America President Mini Timmaraju echoed the praise of Biden’s decision to select Jackson as the first Black woman nominated to the Supreme Court. “Confirming Judge Jackson is a crucial opportunity to shape the Supreme Court in the decades to come,” she said, while warning that the jurist’s confirmation would not affect the outcome of a groundbreaking Mississippi abortion case now before the court that will be decided by early July and could overturn Roe.
Jackson’s Abortion Record
Pro-life leaders and legal experts, for their part, called out Jackson’s record on abortion, pointing to her 2001 friend-of-the-court briefing in a Massachusetts case. This brief is the only example of Jackson speaking to the abortion issue.
Jackson co-wrote the amicus brief on behalf of abortion providers who supported a “buffer zone” that prevented pro-life counselors in the Bay State from approaching women outside abortion businesses.
“The government has a substantial interest in controlling activity around medical facilities and in protecting patients entering those facilities from unwanted confrontations,” read the brief.
“Few American citizens who seek to exercise constitutionally protected rights must run a gauntlet through a hostile, noisy crowd of ‘in-your-face’ protesters,” the brief continued. “Still fewer citizens, when seeking medical or surgical care — particularly care involving deeply private matters — must confront a crowd swarming around them, shouting in their faces, blocking their way, and thrusting disturbing photographs and objects at them. Yet on any given day, patients of reproductive health clinics may face all of these.”
In response to objections about the law permitting facility escorts around these women while barring pro-life counselors, the brief that Jackson co-authored claimed that these women were “presumptively” less willing to hear from pro-lifers.
“It is hard to imagine an audience more ‘presumptively unwilling’ to hear protesting by anti-abortion protesters than women entering a clinic for the purpose of having an abortion,” according to the brief. “By contrast, however, those women can be presumed to be amenable to assistance by the clinic escorts, whose role is to help these women accomplish physical entry into the clinic facilities.”
Carrie Severino, president of the Judicial Crisis Network, a legal advocacy group, told the Register that language in that brief “betrayed assumptions about clinic protesters that I don’t think are fair.”
The brief’s description of the pro-life demonstrators as a “noisy crowd” did not conform with her own experience with such protests.
“Unfortunately, when judges and justices allow their preconceived kind of political notions of what’s really going on to sneak in rather than confining themselves to the actual judicial and legal questions before them, it can lead them to effectively be doing improper fact-finding about what’s happening,” said Severino, who is a former law clerk to Supreme Court Justice Clarence Thomas.
“Those on the conservative side think that how one operates as a judge is very fundamentally different from how one approaches the task of legislation and that how you would vote in a legislature is of no relevance to the question of how you should vote as a judge,” commented George. “But progressives don’t have any such scruples, so I expect her to be pretty much a standard-issue progressive jurist.”
Severino said that President Biden “chose the nominee that had the strongest liberal bona fides and had the most support from the activist groups on the left.” Leftist groups, including Demand Justice, wrote a letter to Biden prior to Jackson’s nomination pushing for someone with this particular background when the president had narrowed his choice down to three candidates. At the time, Biden had reportedly interviewed Jackson, Childs and California Supreme Court Justice Leondra Kruger.
George said that of the three judges that Biden considered, Jackson was likely “the one who would be most acceptable to the most progressive wing of the party.” He noted that Childs, a favorite of House Majority Whip James Clyburn, D-S.C., “was considered too moderate and too willing to compromise or accommodate the folks on the more conservative side.”
Severino also noted that Jackson “is the most extreme nominee of the ones he was likely to pick,” adding that “she’s replacing a liberal justice, but I think she would definitely move the court to the left because Justice Breyer was someone who is much more likely to come to compromise positions with the conservatives.”
Justice Breyer spoke out against court-packing in a Harvard speech last year. In contrast, Jackson did not weigh in on the matter when questioned by Sen. Marsha Blackburn, R-Tenn., during her circuit-court confirmation hearing in April. “I don’t think it’s appropriate for me to comment on proposals about the structure of the court, about expanding the court or anything of the sort,” she said at the time.
District Court Record
Severino said that when it comes to Jackson’s record on the D.C. district court, “she had really a record number of reversals by the appellate court,” which is of concern because “she was being reversed by even some of the most liberal members of the court and in cases where they concluded she didn’t even have the jurisdiction to make the decisions she did.”
“Some of these include Trump regulations that she was overturning when she didn’t have authority to do so,” Severino said, “and in some cases going into gratuitous side commentaries about the policy issues rather than confining herself to the legal role.”
In one case cited by Severino, Make the Road New York v. McAleenan, Jackson temporarily blocked the Trump administration’s Department of Homeland Security from expanding an expedited removal process of illegal immigrants who had been in the country for 14 days to include those who had been in the U.S. for up to two years. Jackson wrote that “DHS failed to address significant flaws in the expedited removal system, nor does it appear that the agency considered the potential impact of the expansion of that system on settled undocumented noncitizens and their communities.”
The D.C. Circuit later reversed Jackson’s decision, noting that “federal law commits to the ‘sole and unreviewable discretion’ of the Secretary of Homeland Security the decision whether to subject certain individuals present in the United States without documentation to ‘expedited removal.’”
Severino also noted the dramatic language of Jackson’s 2019 ruling in Committee on the Judiciary v. McGahn, in which Jackson rejected a claim of executive privilege and held that former White House Counsel Don McGahn had to testify in an investigation of President Trump.
“Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings,” Jackson wrote. “This means that they do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control. Rather, in this land of liberty, it is indisputable that current and former employees of the White House work for the People of the United States, and that they take an oath to protect and defend the Constitution of the United States.”
Pro-Life Groups’ Concerns
While Jackson has not spelled out her views on abortion, President Biden replied “Yes” to the question of whether there would be a litmus test on abortion for his Supreme Court nominees during the February 2020 Democratic presidential debate. He said that a “litmus test on abortion relates to the fundamental value of the Constitution. A woman does have a right to choose.”
“If it is true that President Biden has nominated someone based upon a pro-abortion litmus test, the Senate Judiciary Committee is duty-bound to block any nominee from advancing to the Senate floor, until the American people can make their voices heard on the future of the Supreme Court through the upcoming Senate elections,” Katie Glenn, government affairs counsel at Americans United for Life, said.
“Joe Biden is fulfilling his promise to only appoint justices who support the Roe v. Wade regime of abortion on demand up to birth,” Susan B. Anthony List President Marjorie Dannenfelser said in a statement. “Ketanji Brown Jackson is backed by many of America’s most radical pro-abortion groups. She is on record opposing the free-speech rights of pro-life advocates pleading to save lives outside abortion centers and supporting the false claim that abortion is ‘health care.’ We have no doubt she will work with the most pro-abortion administration in history to enshrine abortion on demand nationwide in the law.”
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