Commentary

Toomey’s vote against Ketanji Brown Jackson set a dangerous precedent. Here’s why | Bruce Ledewitz

Justices don’t make campaign promises. They interpret the law – and that perspective can change over time

April 14, 2022 6:30 am
TOOMEY JACKSON MEET

U.S. Sen. Pat Toomey, R-Pa., meets with Judge Ketanji Brown Jackson in his Capitol Hill Office on Thursday, 3/31/22 (Photo courtesy of Toomey’s office).

Given the extreme partisanship now endemic in our broken U.S. Supreme Court nomination process, it was probably inevitable that U.S. Sen. Pat Toomey, R-Pa., would vote against confirming Judge Kentanji Brown Jackson’s to the U.S. Supreme Court.

Indeed, it was fortunate that even three Republican senators —Susan Collins of Maine, Lisa Murkowski of Alaska, and Mitt Romney of Utah — voted for her.

In his statement on the nomination, Toomey gave three reasons for his opposition: Judge Jackson lacked a “judicial philosophy,” she sentenced defendants in child pornography cases too leniently, and had twice been unanimously reversed for “reaching beyond the scope of her authority.”

Two of these were arguments only a partisan could love.

When child pornography came by mail, enhancement of the sentence could be justified for someone possessing many images of children. Now, the touch of a button downloads thousands of such images. Many judges, and not just liberal judges, have struggled over proper sentencing standards in these circumstances.

As for being reversed, trial judges frequently get reversed, occasionally unanimously, for acting beyond their authority. It comes with the territory of being a Judge and making decisions.

Pa.’s Toomey says he’s a ‘no’ on confirming Ketanji Brown Jackson to the U.S. Supreme Court

But the criticism that Jackson did not identify a single method by which she approaches constitutional interpretation is something very new. Toomey added that Jackson’s “inability to define her own judicial philosophy makes it difficult to understand how she might approach the most important cases facing the nation today, tomorrow, and far into the future.”

Toomey was accurate. At her confirmation hearing, Jackson did not restrict herself to any one approach to constitutional interpretation. Toomey was undoubtedly contrasting Jackson with the most recent previous nominee, Amy Coney Barrett, who had no trouble describing herself as an originalist or textualist judge in the mold of the late Justice Antonin Scalia.

For years, conservative groups such as the Federalist Society have been pushing the idea that the judicial philosophy of a judge is very important and that conservative members of the judiciary practice the philosophy of originalism—which is generally understood as interpreting provisions of the Constitution according to the meaning they had at the time of their adoption.

But it’s not true that the current conservative majority on the U.S. Supreme Court actually decide cases that way.

To see this, consider the important line of cases in which the Supreme Court has been greatly expanding religious liberty since 2016.

In one such case, from 2020, Espinoza v. Montana Dept. of Revenue, the majority, comprised of Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh, held that Montana must include private religious schools in a tax credit program. That means taxpayers will pay, indirectly, but to substantial effect, to support religious schools in their religious programming.

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Clearly, some taxpayers will oppose the religious mission of these schools. But their tax dollars now must go to support religious institutions anyway.

Espinoza is just one of a number of cases in which the Supreme Court is now requiring that religious groups be included in all government programs, even when a religious institution cannot, for religious reasons, fully comply with the requirements of the program.

Undoubtedly, Toomey considers this conservative majority to be comprised of justices who have a definite judicial philosophy: originalism. And, also undoubtedly, Toomey supports the outcomes of these cases.

But not only was the Free Exercise Clause not understood to require government to spend money supporting religious activities when it was adopted, most of the framers of the Constitution vehemently opposed spending public money to support religion.

In fact, preventing government from taxing nonmembers to support churches was one of the reasons the Constitution forbade the establishment of a national church.

The traditions of the legal profession arose when this culture still thought of law as developing toward truth. No one then would have thought of trying to bind a judge to seeing things a certain way “far into the future.”

If there is any originalist justification for this line of cases, no justice has invoked it.

This is not a criticism of this expansion of religious liberty. Times change. Religion is not as violently divisive as it was in 18th century America. Plus, the role of government is now so large that it is difficult for any institution to flourish if it is not included in government programs.

But these cases are not originalism.

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If anything, these cases reflect what conservatives deride as the “living Constitution” school of interpretation that holds that the meaning of the Constitution changes as society changes.

Justices end up deciding what they believe is right. They don’t have a philosophy.

Furthermore, Toomey’s idea that an announced interpretive approach would bind a justice “far into the future” treats the judiciary like members of a political party.

We may all assume that a Justice will vote a certain way in a certain case—to overturn Roe v. Wade, or uphold it, for example. But no one on the Supreme Court actually views legal issues this way. A Justice who believed that nothing could change her vote in a future case should probably recuse herself.

That it even more so with regard to theories of constitutional interpretation. A justice may well change their perspective over time.

That is why judicial nominees don’t make promises. They are not politicians.

Jackson was giving the proper and candid answer to the question of constitutional interpretation.

The traditions of the legal profession arose when this culture still thought of law as developing toward truth. No one then would have thought of trying to bind a judge to seeing things a certain way “far into the future.” Instead, we wanted judges of discernment and good character to face the challenges of new eras.

Now that this culture no longer thinks about judgment and truth, we want guarantees that our current commitments will control forever. Now we think only of power and making sure our side will continue to have the votes to control the Supreme Court.

This is why Toomey wants a permanent commitment to one method of interpretation. It is also why some Democrats want to pack the Supreme Court.

It is doubtful that the rule of law can long survive in this atmosphere.

Opinion contributor Bruce Ledewitz teaches constitutional law at Duquesne University Law School in Pittsburgh. His work appears biweekly on the Capital-Star’s Commentary Page. Listen to his podcast, “Bends Toward Justice” hereHis latest book, “The Universe Is On Our Side: Restoring Faith in American Public Life,” is out now. His opinions do not represent the position of Duquesne University Law School.

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