Breitbart News Senior Editor-at-Large and host of Breitbart News Sunday on Sirius XM Joel B. Pollak weighed in on the confirmation hearings for Supreme Court nominee Judge Ketanji Brown Jackson, saying that the justice has contradicted herself with her thoughts on judicial activism.
“On the one hand, Judge Ketanji Brown Jackson says she does not believe in judicial activism and will stay within the law,” Pollak said in his editorial.
That was the result of a careful but determined questioning Tuesday by Sen. John Cornyn (R-TX), who probed Judge Jackson’s judicial philosophy on the second day of her confirmation hearing at the Senate Judiciary Committee on Tuesday.
Cornyn began in disarming fashion, telling the judge that he planned to “nerd out” with her over obscure matters in legal doctrine. Often, Senators use such discussions to preen about their own supposed legal expertise on national television.
This time was different. Cornyn asked Judge Jackson about the Supreme Court’s past decisions on gay marriage, when it discovered a right that was not explicitly written into the Constitution, and superseded dozens of state laws, for and against.
He revisited Judge Jackson’s approach to judicial activism, and the nominee reiterated that in her approach to her work as a judge, she left public policy decisions to the legislature, and stayed within the bounds of the law and judicial precedent.
But when Cornyn questioned her further about the doctrine of “substantive due process” — the idea that the Constitution incorporates rights that it does not actually enumerate explicitly — Judge Jackson seemed flummoxed by his queries.
According to Pollak, the nominee defended the idea that the constitution could incorporate the rights of common tradition, and on the other hand she didn’t answer whether marriage was a part of cultural tradition.
“What other unenumerated rights are out there?” Cornyn asked, but Judge Jackson was evasive, according to Pollak.
Jackson eventually said that it was “hypothetical,” and she, therefore, could not answer.
“Cornyn noted that while she purported to oppose judicial activism, she set no boundary for it,” Pollak said. “Judge Jackson protested that she would be bound by the law and by judicial precedent. But Sen. Cornyn pointed out that as a Supreme Court justice, she would be largely unconstrained by precedent, given the Court’s tendency to set new precedents.”