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Judge Ketanji Brown Jackson’s nomination to the Supreme
Court goes to the Senate this week.The
Majority Leader, Chuck Schumer, has confidently predicted an affirmative vote
on Friday.
All that is to the good, but in the debate that will ensue
over the next few days, the refusal of Judge Jackson to state, to the
satisfaction of Republican members of the Senate Judiciary Committee, what her
“judicial philosophy” is, will play a large part in the debate.
In an article for USA Today, “Ketanji Brown Jackson owes us
an answer on her judicial philosophy,” Professor Scott Douglas Gerber has
succinctly stated the Republican case.In his essay, he carefully goes through the six fundamental forms of
constitutional inquiry to establish precisely what a “judicial philosophy" is,
and why Judge Jackson’s answer in response to repeated queries about her
philosophy is inadequate.
The votes are pretty settled by now, I trust, but Judge
Jackson should not go on the high court with this cloud over her nomination and
hearing.So let me walk through Gerber’s
analysis with the aim of clarifying her answer to the Committee.
I think Professor Gerber would willingly concede that his
six forms of constitutional argument were first identified as such in my
work.I don’t own them; like one’s
children, one’s ideas have lives of their own but with that concession, I ought
to point out that his use of these ideas is very much off the mark as I
understand them.
Prof. Gerber contends that a jurist’s “judicial philosophy”
is an essential element in the determination by the Senate whether to consent
to a judicial appointment.He defines a
“judicial philosophy” as “the way a judge understands and interprets he law.”
Throughout his essay, Gerber makes the common assumption
that we must interpret a rule before we can apply it.And he offers six different “theories of
interpreting the constitution,” which turn out to be the six modalities of
constitutional argument---history, text, structure, ethos, prudence and
doctrine—by which a particular proposition of law is determined to be true.
There are two fundamental errors in this construction of
these ideas.(1) It is not only not
necessary to have a theory of interpretation to be able to apply a rule, if it
were thought otherwise then we would need a further theory to justify using
that theory, and so on ad infinitum.(2) This definition of a judicial philosophy seems to be the concept
that I call the style of a judge, i.e., her preference for one form of
argument over another just as experienced chess players develop a preference
for a particular opening.
If there has been a systematic error in the years since
these forms of argument were first described as such, it has been the effort to
prioritize one form of argument to the exclusion of others.This has had the distressing effect of
attempting to de-legitimate those decisions with which we disagree; if
historical argument goes one way, say as to the adoption of the11th amendment,
and the text goes the other way because it is much more restrictive that the
announced purposes of the ratification of that amendment, then some jurists
want to say that one or the other modality of argument is simply
illegitimate.There is no warrant for
this.Judicial philosophy may tell us
many things but it cannot be the ground of legitimacy; for one thing, we simply
don’t agree on our philosophies of jurisprudence and making this a prerequisite
for giving deference to a court’s ruling is a recipe for chaos whatever the
epistemological flaws in such a requirement.
Prof. Gerber concedes that, the “aforementioned theories of
constitutional interpretation are not mutually exclusive and a specific Supreme
Court justice sometimes employs different theories in different cases,” which
would appear to undercut his demand that a nominee specify at her confirmation hearings
what forms of arguments she intends to employ as a judge
And this is evident even in the most zealous of advocates
for one or another set of legitimate arguments.Not Scalia with respect to original public meaning (a form of historical
argument), not Breyer with respect to prudentialism, not Black regarding text,
not Marshall and structure, not Harlan and ethos---NONE of these judges
confined their actual opinions to exclude other forms of argument, indeed no
sane judge would.For that sort of
infatuation, one has to look to the academy---that is, to advocates who are not
required to make legal decisions that bind others.
So Professor Gerber has it exactly wrong when he professes
disappointment that Judge Ketanji Brown Jackson described her judicial
philosophy as her “judicial methodology.”In fact, I was listening to the testimony at the time and muttered a
quiet but passionate, “Hurrah!”The
judge was precisely right: what is needed is the well-recognized methodology
that employs all the modalities of constitutional argument the way a carpenter
uses all the tools in his toolbox, depending on the task at hand.
Sometimes, in rare but difficult cases, we will get
different outcomes depending on the form of argument that is used to explain a decision.That is as it should be: judging is not a
suitable activity for machines or children that cannot tolerate the possibility
of more than one correct answer to a complex problem.The fact that there are six ways of
determining a proposition of constitutional law to be true or false does not
provide a cudgel with which to batter the nominee.Quite the contrary: Judge Jackson had it
right and the embarrassment, if there is to be any, should fall of those who
want to de-legitimate our courts and our constitutional institutions based on a
fundamental misunderstanding of judicial methodology.
Philip C. Bobbitt is Herbert Wechsler Professor of Federal Jurisprudence at Columbia Law School. You can reach him by e-mail at pbobbi@law.columbia.edu.