Judge Ketanji Brown Jackson Pledges To Recuse Herself From The Harvard University Affirmative Action Case

And that, as they say, is that.

I was wrong, Prof. Turley was right. He was certain that Jackson would recuse from the case because of the screaming conflict she faced by sitting on Harvard’s Board of Overseers. He wrote,

“It would be profoundly inappropriate for a jurist to sit on a case for a school in which she has held a governing position and a role in setting institutional policies. This would be akin to a justice sitting on a case on oil leases for Exxon while being a member of the oil company’s board of directors.”

I wrote, “That’s exactly right. But I bet Jackson doesn’t recuse.”

My reasoning, not that it was worth anything as we now can see, was that I could not believe that after being nominated specifically to increase the presence of a “black perspective” on the majority and historically white male court, Jackson would not be pressured into staying in this case, which has the potential to kill pro-black admissions policies as constitutionally invalid. As a Supreme Court Justice, she does not have to recuse for any reason; Justice Scalia demonstrated this when he defiantly refused to do so despite hearing a case in which his friend, Vice-President Cheney, was a named party.

Now Jackson is in the strange position of having to make herself ineligible to rule on exactly the kind of case where she would be expected to bolster the progressive agenda. I doubt that this has permeated the consciousness of Woke World yet, and when it does, there will be hard questions asked about how the President could have settled on Jackson when another black justice might have been the deciding vote to rescue race-based admissions yet again.

Still, Jackson did the ethical thing, indeed the only ethical thing. I should have been less cynical, and more trusting.

I only wish I had been similarly wrong about my belief that the Republicans would try to challenge her fitness for SCOTUS even though her confirmation ( as well as her qualifications) is not in doubt. The recusal issue was the only one that legitimately stood in her way; it’s not like she raped anyone, after all. The GOP should wrap things up and vote to confirm her now.

23 thoughts on “Judge Ketanji Brown Jackson Pledges To Recuse Herself From The Harvard University Affirmative Action Case

  1. Well, you’re assuming that what she said in the hearing is what she will do when presented with the case. I hope she stands by her recusal when the time actually comes.

      • Isn’t there, though? With the current climate of “It isn’t what it is”, wouldn’t WaPo and the Times just jump out and find some technicality that makes recusing herself unnecessary and toss this whole incident down the memory hole? There is nothing that can’t be wiggled out of given the current lack of trustworthiness and accountability.

      • I previously commented that nothing said by a nominee during advice & consent is legally. Hearing the answers to some of the GOP Senators shouted her Progressive bona fides. A commenter below mis-identified a particular organization promoting Judge Jackson’s appointment; (Demand Justice), whose home page declares that the Supreme Court is broken and that they can ‘restore balance’ by adding seats. When asked if she had an opinion on the size of the Supreme Court, she dodged. When that same GOP Senator asked if the Supreme Court should have 28 Justices, she sheepishly affirmed.
        Her unwillingness to define “woman” (despite being nominated as a woman) and the support of anti-racist curricula for kindergartners makes me believe that she isn’t going to be writing opinions that are restrained by what’s in the Constitution. Get well soon, Clarence.

  2. Perhaps you have more information than I but her answers to the questions about CRT in Georgetown Day school in which she has been a trustee for many years suggest she is far less transparent the she claims. The board of that school recommended Ibrahim Kendi’s work to promote anti racism at that private school. ( see the GDS websites trustee statement – Fox News by Peter Hasson, Cameron Hawthorne 3/22/22. “Ketanji Brown Jackson serves on board of school that promotes critical race theory.”

    There are some 48,000 pages of documents from the sentencing commission that are being withheld by Durbin. Why?

    She also claimed that in her 9 plus years on the federal bench she rarely encountered a constitutional issue. That seems odd.
    There is a huuuge difference between legitimate investigation and vetting by the Judiciary committee members and what was done first to Thomas and more recently to Kavanaugh. Rolling over and confirming her simply to show how less despicable they are than the Biden/ Durbin /Schiff school of Judiciary practice is simply surrendering to the left because you no longer have the will to fight for your principles. Integrity means you stand up for your principles.

    I understand she cannot answer questions on how she would rule on a particular issue but she should be able to stand up to legitimate inquiry and give the people a sense that she will in fact follow the Constitution and not be the radical activist she very well could be. Then and only then should she be confirmed. And that goes for any appointee.

    • I don’t see the relevance of her position on CRT, whatever it is. In the end, it’s a policy issue, not a constitutional one. I assume she’s a CRT fan—she was nominated in part as a nod to “antiracism.” Also, a board recommending a book is not the same as promoting the ideas in that book. The Autobiography of Malcolm X is a useful book to read at the high school level with competent supervision. I’ll also take her at her word regarding “rarely” encountering constitutional issues, whatever rarely means. As for the sentencing commission: its a policy board. I’ve watched sentencing theory swing back and forth like wounded swing: nobody knows what is “just” or what “works.” The bottom line is that she’s qualified by all previous standards, and all the GOP can accomplish that is positive would be to reestablish precedent by accepting a President’s choice without getting into the mud, especially since the outcome is predetermined. Or they can hand over more “evidence” that Reupublicans are racists. It’s an easy choice, or should be.

      • Agreed. The Republicans can only harm themselves by savaging her, and might earn a bit of advantage down the road by not acting like democrats. Who knows, it might even cause the dems to think about the optics of their shenanigans a bit in the future.

      • I respectfully disagree. To just say she is qualified and should be confirmed suggests there is no need to even have confirmation hearings. One does not need to wrestle with pigs in the mud to pursue lines of questioning that might indicate whether or not she will be a quality jurist or an advocate for a particular policy.

        I never suggested she be given the Kavanaugh treatment but I do think questions that may reveal any biases are relevant.

        Perhaps I am just a member of the hoi-poloi that do not understand what makes anyone qualified to sit on the high court but as one of those who is believed by those espousing the anti-racist remedies established by Kendi and others to be born with the proverbial silver spoon of privilege in my mouth I do think how she would approach questions of equity are important.

        There are hundreds of jurists with similar professional qualifications I want her advocates to convince me she will be exceptional or even just ok. The argument that holding her to account for her past work, writings or judicial philosophy will give the Democrats ammunition to be called Republicans racist is not persuasive because that will never happen anyway and it suggests the nominee is someone in need of protected status. The threat of being called a racist is part of their stock and trade and they count on our fear of the label which is why it is so effective. The ability to hang the racist label on another and destroy them economically is a privilege I don’t possess.

        • I don’t think there should be confirmation hearings, as they have developed, or rather deteriorated. Today Justices refuse to comment on direct controversies, and Jackson went so far as to refuse to explain a judicial philosophy, which is absurd. Now all the nominees do is stonewall. Make the Senators read what a judge has written and said on the bench and in scholarly works…how often she has been reversed…and so on. The records speak for themselves

          • The hearings are as much an opportunity for Senators to grandstand as anything else.

            But, they do have some purpose, as some candidates have been withdrawn after public scrutiny (E.g. one of GW Bush’s nominees).


            • Ugh. You mean Harriet. She could have been disqualified by an honest memorandum of fact. She had been a senior partner at a big Texas firm that enabled a client’s fraud, and worse, was practicing law without a license her entire tenure with the White House.

          • That is a legitimate reason to argue against these televised hearings, but that was not my argument. I care little for grandstanding and want the Senators to read what a judge has written and said on the bench. As a citizen who votes for Senators, I want to know what they have used to take the positions they take. We elect these Senators to make these decisions on our behalf. These confirmation hearings are the only way at present the average person gets to understand who we are placing on the highest court which has such a direct impact on daily life.

            To me stonewalling is a tactic used by those who wish to hide their real positions on a subject. That in and of itself to me is a disqualifier. If you don’t have the spine and integrity to own up to your own reasoning you have no business judging anything.

            • The stonewalling bothers me, too.

              The problem is that certain lines of questions should not be answered by judicial candidates. Their job is not to pre-judge questions or issue advisory opinions until a REAL question comes before them. Walking that tenuous line is difficult, especially if you are being questioned by some moron whose job is impress upon others that they are tough and clever and ask insightful questions.

              As for other nominees (cabinet nominees, for example), everything should be fair game. We WANT to know, we NEED to know what they plan to do in the future.

              That is the real difficulty in having confirmation hearings for Supreme Court Justices.

              A related problem to this is that the Court has gotten far more powerful than it was ever meant to be. That fuels this problem.


          • “I don’t think there should be confirmation hearings, as they have developed, or rather deteriorated.”

            Came here to say this.

        • You’ve articulated my thoughts on this exactly. While I understand Jacks POV this seems like yet another occasion where one side of the aisle is held to a greater standard than the other, and that no one should alter their sincere line of questioning over fears of being called racist. Not only will that happen as sure as the sun rises, it’s inherently disrespectful to the nominee to treat her any differently just because …. Well we all know … that’s why she was chosen.

          • It’s also ridiculous to expect the side of the aisle whose nominee you tried to derail with lies about something that happened in high school and then blamed for denying this. How dare a white male defend himself against the accusations of a woman, no matter how flimsy, when he should have withdrawn in shame? How dare those white male GOP senators ask any questions that are not soft-pedal, when they should precede every question with an apology?

    • She also claimed that in her 9 plus years on the federal bench she rarely encountered a constitutional issue. That seems odd.
      Does that mean none of her decisions have ever made their way to SCOTUS? If so, she’s doing better than a certain “wise Latina”, who had six of her seven cases that went to the SC overturned, and the 7th upheld, but her reasoning on the case unanimously rejected by the court.

      • Willem,
        That was her claim not mine. In the context of the questioning, she said she rarely encountered Constitutional issues. I assumed that meant she never had to determine if a defendant’s rights were violated. That is what I find odd. If she has limited experience determining whether the government trampled an accused’s rights, then we have no way to determine if she has the qualities we need interpret thornier Constitutional issues.

        • Yes, I understood that; was just speculating on what, exactly, she meant by it. Was it, as you conjecture, that she had little experience with cases involving constitutional questions, or that such of her decisions had rarely been appealed or reversed.

        • It is more likely that Judge Brown Jackson sits on the Court of Appeals for the District of Columbia and sat on the USDC for DC , which hears more administrative matters than other circuit courts of appeals. Those Court hear more government agency cases that other circuits, too.


  3. Just as with the COVID vaccine, the WH and msm are strongly discouraging people from delving too deep or really debating Jackson’s nomination. I find her backers troubling, especially since she was long at the top of the list for SCOTUS from Defend Justice – a far left, highly – mostly secretly funded group which has a key mission of packing the court – an idea Jackson claims she has never given much thought to. Seriously?
    The WH claims that no outside groups were responsible for Jackson’s nomination…but delving into Defund Justice’s ties makes that claim hard to accept. On the board of directors is Elie Mystal, The Nation’s justice correspondent who declared, “The Constitution is kind of trash.” Paige Herwig is former deputy chief counsel at Demand Justice and serves as President Biden’s point person on judicial nominees. Press Secretary Jen Psaki, is a former senior advisor for Demand Justice and board member of their Supreme Court Voter project.
    Who is funding Demand Justice. There seems to be a lack of transparency in the relationship between Demand Justice and Jackson and their expectations of her once on the bench. I don’t know the truth, but the web of ties to DJ makes it fair to wonder if she is saying what she thinks the gullible want to hear, while intending to do otherwise if confirmed. My radar goes up immensely on any issue where open debate and in-depth research is discouraged, and I fear lazy journalism will once again fool us all.

  4. Lia Thomas breathed a great sigh of relief and biological female athletes across the land hung their heads in discouragement after hearing Brown answer the— “what is a woman” question.

    “It was not surprising to see Judge Ketanji Brown Jackson dodge the question “What is a woman?” But it was surprising how she dodged it.

    In response to Senator Blackburn, Brown Jackson might have said something to the effect of: “Some argue sex should be defined as strictly anatomical. Others argue it should include gender identity. This is a live political and legal question that the court considers in context-specific and case-specific ways.” If pressed again, she could have said, “As a judge, I cannot answer this question in the abstract, only in relation to specific cases.”

    But instead, Brown Jackson implied that she was incapable of answering the question because she does not have the requisite expertise. “I’m not a biologist,” she said. This answer is extremely off-putting, as Kyle has noted. Legally, there might be some justification for suggesting that the definition of a woman is complicated and controversial (though it shouldn’t be, of course). But biologically, such a suggestion is absurd.

    As I wrote earlier this month in a column titled “What Is a Woman?”:

    Quite simply, a woman is an adult human female. A woman belongs to the female sex, which means she has female chromosomes, reproductive organs, and gametes. Sex is observable at birth (and even earlier with ultrasound technology) and detectable long after death by DNA testing.”


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