Ethics Observations On The Judge Ketanji Brown Jackson Senate Hearings, Part 2

The Post editorial was so ethically awful that it warranted special attention. The rest of the story…

Observations:

1. As I so sagely predicted, the Republican attacks on Jackson have been declared racist by Woke World, democrats and the news media. Here are some of the comment on the Post editorial:

  • “I am reminded of what Jackie Robinson had to go through in 1947 when he broke the color line in baseball. How he had to take every shot, every insult, every racist thing thrown at him without complaint. And now, in 2022, Judge Jackson had to sit there and just take every insulting, despicable, racist and sexist thing thrown at her without being able to call out those who treated her with such bigotry, such callous disrespect.”

  • “Graham, Blackburn, Cruz and other GOP inquisitors know retention of the racist vote is crucial to the election of Republican candidates. They are intent on pandering to that component of Trump’s populist base. The senators’ disrespectful treatment of Judge Jackson doubtlessly did much to retain that base support.”
  • “Come on. “Not all Republicans are racists” is so 2016. ANYONE and I mean anyone who votes for a Republican in 2022 is a racist. Period. Maybe not fully racist meaning gee, they might have concerns about inflation or whatever, but racist in the end. R = RACIST.”

Nothing any of the Republicans said to or about Jackson was racist, but it doesn’t matter. The tough questioning served no purpose, but helped bolster the “Republicans/conservatives are racists” Big Lie. The justification was “tit for tat.” It is incompetent politics, particularly at a time when minorities are increasingly open to conservative candidates.

2. The GOP obsession with Jackson’s sentencing philosophy regarding child porn violators was an embarrassment. Child pornography is a weird legal realm that has always had First Amendment problems, and they remain unresolved. Moreover, it is a topic unlikely to surface in a Supreme Court case. Moreover, Jackson’s relationship to the issue is tenuous at best: if this was so important, why wasn’t there a peep from GOP Senators when Jackson was confirmed as a federal judge? As conservative former Federal prosecutor Andrew McCarthy wrote, Senator Hawley seemed to deliberately muddle the crime of child pornography with crimes like child molestation and rape. McCarthy called the whole child porn issue regarding Jackson as “meritless to the point of demagoguery” in the National Review.

To make the “child porn” tactic even worse, and I hadn’t picked up on this, the sick web far-Right cult QAnon had first come to national attention after the absurd “Pizzagate” theory held that Satan-worshiping Democrats were trafficking children out of the basement of a Washington pizzaria. A believer with an assault rifle raided the restaurant, and Judge Jackson, as a district court judge, sentenced him to four years in prison. QAnon’s conspiracy theories took off when an anonymous writer, writing as Q, used the incident to advance the claim that a cabal of top Democrats was abusing children. So, naturally, QAnon has been activated by the “soft on child porn” attacks by Sentor Hawley and others, and, as night follows day, The New York Times is reporting that they may be a deliberate QAnon “dog whistle.”

Again, Republicans are handing Democrats and the media sticks to beat them with, while deriving no benefits whatsoever. Instead, they could be repairing the political culture and showing that one party, at least, has some functioning ethics alarms.

3. One of my least favorite Democratic Senators, Senator Sheldon Whitehouse (D-R.I.)—he wants to prosecute those who are unconvinced by climate change activists—-condemned his Republican colleagues for repeatedly asking  Jackson about her “judicial philosophy,” a question she adamantly refused to answer. McCarthy, among others, has criticized what he takes as her philosophy of judging. Personally, I hate questions like that: they are “gotcha!” queries. No judge worthy of confirmation will give anything but a boilerplate answer, or, like Ruth Bader Ginsberg, just duck the question. But I digress: Here is Whitehouse yesterday:

“The fact that Judge Jackson has said, ‘I don’t have a judicial philosophy, I’ve got a judicial methodology, doesn’t bother me a bit.In fact, it kinda bothers me the expectation that a nominee to the Supreme Court should have a judicial philosophy.One of the problems with ‘judicial philosophy’ is occasional adherence, selective adherence, which in my mind makes it less of a judicial philosophy and more of a doctrine of convenience to be trotted out when it helps the people you want to help, and originalism strikes me as that kind of doctrine…I don’t think you have to have a judicial philosophy. I think you have to have integrity, a judicial temperament. But a philosophy? Where does that come from?”

Now here he is questioning Justice Neil Gorsuch during his confirmation hearings:

“How would you describe any differences that you may have in judicial philosophy with [then-Chief Judge of the D.C. Circuit Court of Appeals Merrick] Garland?”

…and speaking during Justice Sotomayor’s hearings:

“It is fair to inquire into a nominee’s judicial philosophy, and we will here have a serious and fair inquiry.”

4. Sen. Martha Blackburn tried to drag Jackson into the trans/”real woman”/biological man controversies by asking,  “Can you provide a definition for the word ‘woman?’”

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

“You can’t?”

“Not in this context,” Jackson said. “I’m not a biologist.”

“Do you believe the meaning of the word woman is so unclear and controversial that you can’t give me a definition?” Blackburn asked, fairly

“Senator, in my work as a judge, what I do is I address disputes. If there’s a dispute about a definition, people make arguments, and I look at the law, and I decide.”

That was an admirable deflection job by Jackson, I must say. However:

  • This shows how much the Left has rendered language, reason and biology incomprehensible in its scorched earth efforts to make transsexualism “normal.”
  • It also hints that Jackson feels necessarily allied with  extreme LGBTQ activists, since she appears unwilling to attract their ire by defining “woman” as it has been defined for eons.
  • Meanwhile, I have to ask: how can the Times write repeatedly of Jackson’s importance as  the “first Black woman on the Supreme Court,” and the Washington Post editors, in the editorial discussed here, attack Republicans  for not “recognizing the historic nomination of the first Black woman to sit on the Supreme Court,” when the “woman” herself can’t define what being the “first black woman” means? If I were Clarence Thomas, I’d announce today that I had decided that I was the first black woman on the Court, and dare Jackson to refute me.

26 thoughts on “Ethics Observations On The Judge Ketanji Brown Jackson Senate Hearings, Part 2

  1. 2. In fact, ever since the whole Pizzagate thing, I have noticed conservatives picking up the banner against sex trafficking and other crimes against children. I’m not sure where this whole tangent came from. While not wrong to oppose these things, I just kinda wonder…who threw a dart at the board and hit sex trafficking/crimes against children to be chosen as the cause due jour?

    • Good observation. Maybe consultants have pitched sex trafficking/crimes against children a matter that will win over the highly prized suburban white women vote?

    • The idea that one’s opponents are doing terrible things to children is a very old one. It was crucial to anti-Semitic blood libel. Of course human trafficking is a real problem, but the way it has been exaggerated by bad actors detracts from the fact that most abuse of children happens in the home or among people the family trusts, not cabals of powerful elites.

    • I would suggest that it picked up after Drag Queen Story Hour became a thing… followed by the celebration of a 10 year old cross dressing boy named Desmond, and other “Drag Kids”. The far left has actually allied itself with people who seem to sexualize children, and attack anyone who questions it. There’s also the articles on Salon which tried to argue that pedophilia wasn’t wrong.

      • My recollection is that they did not argue that it wasn’t wrong, but that pedophiles who didn’t act on their compulsions deserved compassion and counseling, not to be lumped in with those who did abuse children. But correct me if I’m wrong.

  2. Sadly, the entire Senate Confirmation process for SCOTUS judges has very little to do with the judges anymore. It’s all about inter-party pissing contests and soundbites back home.

  3. “It also hints that Jackson feels necessarily allied with extreme LGBTQ activists, since she appears unwilling to attract their ire by defining “woman” as it has been defined for eons.”

    How has it been defined for eons?

    • Woman: an adult female human being.

      Anyone born with a vagina is Female, although the official definition is based on gametes. There are some gray areas that apply to a fraction of a fraction of a percent, so alt

      Surgery and hormone treatments are not capable of actually changing it, which is why the transgender movement is trying to reshape it to mean ‘anyone who thinks of themselves as a woman’. Which leads to phrases like ‘people who menstruate’ and ‘bleeders’.

      • The trans community is working very hard to force people to say something is what it isn’t even though nearly everyone knows it isn’t what they say it is.

  4. From my existentialist standpoint, I think Judge Jackson gave a perfect answer to the “how do you define a woman” question, and I suspect she would have answered the same whether or not the question had anything to do with gender.

    “How do you define a dog, shoe, automobile, computer, or book?” runs into the exact same issue: Arguments about definition almost always depend on the purposes of those arguing. What do they hope to accomplish? Words are semantic tools to help us achieve those ends. “Thing is as thing does.”

    We only care what the word means so that we can establish a mutual understanding of what is supposed to happen. As such, it’s difficult if not impossible to provide an exacting definition of a word across multiple contexts that care about different aspects of what the word describes. If a judge could define a word across all contexts, there would be little need for judges to figure out how laws applied to specific situations.

    • Our laws aren’t shaped by existentialism.

      If a person, place, or thing isn’t what it is, then what is it? What is anything – including the word “what?” How can we even ask what someone or something is if every word we use to ask questions is questionable?

      What is an “existentialist standpoint” if existentialism, like a woman, is a word or idea that’s subjective? Why bother labeling anything as existential if existential means whatever I want it to?

      Your logic seems circular…but maybe a circle is a square that’s taken hormones and is dressed in a billowy rainblow colored kaftan. And maybe a kaftan is actually a robe that identifies as day wear. Because nothing is everything and everything is whatever I say, whenever I say it, because apparently I have no other hobbies.

      The question isn’t “what is a woman” by the way. The question is WHO is a woman.

      • Great to hear from you again!

        I should clarify something: I’m an applied existentialist. I realize that other people calling themselves existentialists aren’t quite so results-oriented, and so that might create a misleading context for statements I make. I ask questions because I expect to figure out the answers.

        That said, part of being an existentialist means acknowledging that words only matter because they tell us what we should do regarding the entities they describe.

        Most words are inherently ambiguous because we use them in multiple different contexts. Is a rubber duck a duck? Well, yes, in that it has the shape of the “duck” category of animal and we’re supposed to think of that category of animal when we see it, but also no, in that it’s not a living animal. Is a remote-control toy car a car? Well, yes, in that it has the form and self-propelled locomotion of a car, but also no, in that it cannot carry people like a vehicle. Is the “thumb” a finger? Well, it’s a digit that sticks out of the hand and can manipulate things, but it’s opposable to the other digits. Is a tomato a fruit? Well, it’s an edible tissue that grows around the seed of a plant, but it’s not as sweet (or sour) as most things we call fruits.

        Understanding the functional effects of an entity and their relevance to the situation at hand dissolves the question of what label to apply to it, because we don’t need a label if we know what we want to do with the entity.

        As the commenters in Phlinn’s link note, the way to escape the trap of arguing about definitions is to ask ourselves why we care about the answer. The reason we care fundamentally comes down to what we would do differently depending on that answer, and why we expect that decision to result in a better outcome.

        All that’s left is communicating the situation clearly to others. We choose words based on the decisions people consider most important. English doesn’t have gender-neutral third-person singular pronouns because in the historical contexts where English evolved, it rarely happened that a human would speak about another human in a meaningful sense without knowing the other human’s gender already. I’m given to understand that at least some languages of Aboriginal Australian people always use objective directions (e.g. “your north hand”) and never relative directions (e.g. “your right hand”) because in the context in which they live it’s absurd that a person wouldn’t know what direction they’re facing.

        In short, an argument over definitions is a distraction from an underlying argument over what decision to make, and the more people learn that, the easier it will be to build a world we can all be proud of.

        Does that make sense?

        • It makes sense if one needs to view things in that way. I remember being taught about existentialism in high school and a lot of it centered around fairly unhappy endings. “The Lottery” was one example as was as was “The Death Of Ivan Ilyich.” My assumption was existentialism is really about the futility of life; not about words not meaning much.

          Decisions as a study I get, if that’s what you’re referring to. I guess I’m more into discernment as a vehicle for greater understanding.

          • Ah, that kind of existentialism. Sorry, I forgot that that outlook existed.

            It’s true that a defining characteristic of existentialism (as far as I can tell, anyway) is “existence has no inherent meaning or purpose”, but from there an existentialist can go in many different directions. The annoying ones fall into despair, but the really annoying ones just try to clinically remove the meaning from everything while justifying themselves with words that themselves don’t mean anything to speak of. I’m hoping those groups aren’t the majority of existentialists, but they’re probably the loudest ones.

            The existentialists I approve of are the ones who bring meaning to the world, who choose their own purpose. Assuming there is no inherent meaning or purpose just means we have to make them ourselves.

            The toolbox of foundational concepts I’ve developed is my way of making it easier for everyone else, so we can build a world we can all be proud of. There’s a few different things that a person can contribute to the world, and you can mix and match the methods of doing so. That makes it easier to envision worthwhile things to do as well as the steps to get there. The rest is calibration to a specific set of contexts.

            It does definitely help to understand the world we’re dealing with, and that can even be an end in and of itself.

            How does that sound?

  5. If we are honest we know that had the Republican senators simply asked her what her greatest strengths are or what she considers her weakness which are standard questions in a job interview the Democrats would still say these are racially motivated.

    I have to wonder why no Republican reminded those claiming racism how their questions were more racist then the ones asked of Justice Thomas when Biden headed up his confirmation hearing.

    I’ll say again I don’t want Republicans engaging the same behaviors as the Democrats but we should not have to bend over backwards to try to avoid a label that will be given to them no matter what they do.

    • Let’s face it: Republicans are inherently evil, and Democrats are inherently morally superior simply by virtue of their not being Republicans. When Dems say they want Democracy and “Democracy is at risk” or words to that effect, what they are saying is they want single party Democratic party rule and complete social hegemony. Anything short of that is an existential threat to Democracy. Any non-Democrat Supreme Court justice is an existential threat to Democracy, as they define it. Compromise is surrender and defeat.

    • I agree. I scrolled through some Twitter feeds about the confirmation hearings and the trending comments related to “Black Women” with scores of comments about how question Brown-Jackson’s credential is just one more arrow in the heart of long-suffering Black women* at the hands of racist white men and/or proof positive of system racism oppressing Black women. If pressed, I am not sure which of her opinions her supporters have read. There can’t be too many of them from her one year term as a court of appeals judge and there maybe more as a district court judge, but according to her supporters she is the MOST qualified person ever nominated, especially compared to those nasty white dudes on SCOTUS.

      I am not offended that she defended Guantanamo detainees – though my understanding is that she did appellate work on those cases and not the few trials that have taken place. The detainees were captured on the battlefield and held without charges or trials indefinitely. That flies in the face of Constitutional guarantees of speedy trials wherein the accused gets to challenge the accusers, and that holds true for the local DUI defendant and international terrorists. Being held on a military base in Cuba doesn’t matter to me – it is considered US soil so, in my Rush-elated mind, Constitutional protections attach, whether military tribunals or civilian criminal trials.

      i did hear someone celebrate that her appellate opinions have not been overturned by SCOTUS. That seems like a silly measure of her judicial acumen considering she has only served her first year as an appellate judge and probably hasn’t authored too many opinions for the court, especially because she would the junior judge on any given appellate panels.

      Her stance on child porn defendant doesn’t offend me, either as a defense counsel or as a judge. Perhaps a policy discussion needs to be had about that area of the law – I don’t know and I don’t know all of the ramifications involved in the issue.

      I will confess that my knowledge of federal sentencing guidelines is woefully scant as I don’t practice criminal law and I am not sure if sentencing guidelines are mandatory minimums and maximums or if the sentencing judge has discretion to deviate from the guideline when imposing sentences. If they are guidelines and not mandatory, then her sentences do not seem out of line, and appear consistent, with sentences imposed by other federal judges for similar crimes (according to what I read on Simple Justice). And, maybe that is the issue: perhaps the sentencing guidelines are too stringent/limited and take away any ability for a judge to consider mitigating defenses. I have heard some federal district court judges complain that their hands are tied in some cases but, again, I am not a criminal lawyer, so I don’t know the rules.

      Brown-Jackson appears qualified. Her side-stepping the “define a woman” question was expected as it appeared to be one of those “do you still beat your wife” questions. I am not annoyed by her response from a judicial perspective, a la Ruth Bader Ginsberg. As a larger policy question outside of the realm of law suits and opinions, she seemed to embrace the LGBTQ-ad nauseum ideology, though. But, Whoopi supports her, so that is enough for me.

      jvb

      *Ed. Note: I just want to know the rules. I thought she was a qualified woman of color. When did it change to a qualified Black woman?

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