When Judge Ketanji Brown Jackson failed to outline a lucid judicial philosophy in her Senate confirmation hearings in late March, news outlets like USA Today were quick to celebrate her reticence as a refusal to “take the bait” and “let anyone else define her.”
But written testimony submitted by Alabama Attorney General Steve Marshall suggests that a lack of judicial philosophy is not only not a good thing (a view shared by legal scholars like Jonathan Turley of George Washington University Law School) but that Jackson may in fact have a judicial philosophy – and that may be even worse.
In his testimony, Marshall forthrightly links Jackson’s judicial philosophy to the same soft-on-crime philosophy driving crime spikes in cities across the country, often the result of Soros-backed district attorneys. In fact, Marshall notices that some of the same groups backing Jackson’s nomination have been vocal in their desire to “defund the police” and “reform our broken criminal-justice system.”
From Marshall’s testimony:
Not only does Judge Jackson’s nomination come at a time when crime and punishment is ranked as a top issue—if not the top issue—by Americans from both political parties, but she has received the strident support of activist groups with views about our criminal-justice system that are far outside the mainstream. This is a cause for concern… this appointment may well be intended to initiate a fundamental transformation of our criminal-justice system—or, as Judge Jackson once described it, a ‘fundamental redesign’ of the system.
Marshall writes that he believes an exploration of “whether or not an individual’s personal philosophy regarding the criminal-justice system should be among the considerations for judicial nominees” may be in order.
And, perhaps most controversially, Marshall told Townhall he believes some conservatives have been “duped” into supporting legislation like 2018’s First Step Act, lauded at the time as a smart, bipartisan approach to sentencing and prison reform.
Townhall interviewed Marshall recently about his concerns. His comments are below, and well worth a read in their entirety.
TH: Jonathan Turley of George Washington University noted that Jackson offered her methodology as a judicial philosophy. Based on your testimony, her statements, and her tendency to grant below minimum sentences to some criminals, is it fair to suggest her judicial philosophy is one of sentencing reform and a broader restructuring of the criminal justice system?
AGM: I completely agree with Professor Turley that Judge Jackson’s conflation of judicial “methodology” with judicial “philosophy” is “linguistically and legally wrong.” This was not, of course, the only time Judge Jackson struggled with the English language during her hearings—after all, she could not even define what a “woman” is.
I think it is fair to suggest—based on her record and testimony—that Judge Jackson would not, as a justice on the Supreme Court, subscribe to the doctrines of textualism or originalism, but rather be an adherent to activism. That is to say, Judge Jackson’s approach will be to decide cases in whatever way produces the social or political outcomes she favors.
It is clear that one such outcome she favors is a “fundamental redesign” of our “unfair” criminal-justice system, so we can certainly expect she will decide cases to that end.
TH: She is likely to be confirmed. How do you think this will affect cases that come before SCOTUS that might ask constitutional questions regarding fair trials and sentencing?
AGM: Given what we know, and so much that we don’t, it is hard to envision Judge Jackson being able to join with a moderate majority on criminal matters. As I explained in my testimony, there is evidence that she views the system as “unfair” and overly punitive. Without a demonstrable commitment to judicial restraint, there is every reason to fear that her personal beliefs will impact her decisions on criminal-justice matters.
TH: Some Republicans were very much in favor of the First Step Act. Do you think there are limits to sentencing reform and will that be a conversation Judge Jackson's confirmation might spark?
AGM: The impetus of reform must be driven by reality, not rhetoric—as was the case with the First Step Act. There, Congress ignored the concerns of its own Justice Department, to say nothing of the concerns of myriad prosecutors across the country (myself included). Legitimate reforms require great care and precision. Broad strokes, again like we saw in the First Step Act, lead to broad miscalculations.
At some point, Republican “reform” advocates are going to realize that they have been duped into embracing the progressive agenda—at the expense of public safety. Leniency does not result in less crime. It simply results in leniency for more crime and a breakdown of law and order. Americans are experiencing this and they’re demanding that it be addressed.
TH: You mention the groups supportive of Judge Jackson. Many of the groups who supported the soft-on-crime DAs were funded by heavy-weight, left-leaning, politically involved billionaires. Are you concerned that Judge Jackson is similar in philosophy to these DAs -- who often oversee cities where crime has now run rampant -- and that she will ultimately bring this soft-on-crime philosophy to the Supreme Court?
AGM: Every other nominee in recent history has been asked about groups that they’ve spoken to, groups that have given them awards, and groups that have voiced support for them. Judge Jackson should be treated no differently.
There is nothing in Judge Jackson’s record that reflects an acknowledgement of the necessity to incarcerate and severely punish certain classes of offenders. Without that record, you look at context—who nominated her, who supports her, and the few glimpses that she’s given us into her perspective on the criminal-justice system. There are things in her record that reflect a distorted viewpoint wherein the criminal is the party most deserving of compassion. We see this concept appear at various points in her writings and opinions, but also in the answers that she gave verbally to questions from the Judiciary Committee.
At best, she has made no effort to disassociate herself from the anti-incarceration/soft-on-crime crowd that so enthusiastically supports her.