Thomas McArdle
THOMAS MCARDLE was a White House speechwriter for President George W. Bush and writes for IssuesInsights.com.
Activist Jackson
Why Biden’s Supreme Court nominee would be an activist judge
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resident joe biden’s Supreme Court nominee, Judge Ketanji Brown Jackson, while testifying before the Senate Judiciary Committee last year after being nominated for the D.C. Circuit Court of Appeals, was asked by Sen. Ted Cruz (R-Texas) how she defined judicial activism. She replied: “I think judicial activism is when a judge is unable or unwilling to separate out their own personal views of a circumstance or a case and they view consistent with those views rather than the law, as they’re required to do.” We already know that Jackson is going to be an activist justice, no matter what clever verbal dance she performs before senators and the TV cameras. We know it from what she’s done, not what she’s said, and we know it from her personal background. Jackson’s nomination is historic, and a development for which every American can be proud. As this first woman of African descent has noted, “my ancestors were slaves on both sides.” Yet despite her inspiring life story, Jackson seems to be what one Sen. Barack Obama called Judge Janice Rogers Brown, the first black woman to sit on the California Supreme Court, during her nomination to the D.C. Circuit in 2005: “a political activist who happens to be a judge.” Biden touts Jackson’s qualifications. She graduated Harvard magna cum laude, and Harvard Law cum laude, but as Obama also said with regard to Brown, “There are a lot of real smart people out there whom you would not put in charge of stuff. The test of whether a judge is qualified to be a judge is not their intelligence. It is their judgment.” Jackson apparently considers disorderly conduct—like repeatedly
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screaming profanities in defiance of police warnings during a public gathering—to be free speech protected under the First Amendment. She also, in Brown v. Government of the District of Columbia in 2018, actually concluded that panhandling was free speech and that Washington panhandling laws were suppressing it. “Plaintiffs have plausibly alleged that the panhandling provisions at issue are content-based laws that restrict protected speech in public forums,” she wrote in her decision.
If her confirmation slides through as smoothly as expected, the public may one day wonder why this woman who made history wasn’t scrutinized with a more critical eye. She would be the first federal public defender ever placed on the Supreme Court, having during her short tenure a decade and a half ago saved a drug dealer’s lawyer from jail time, gotten a convicted illegal handgun owner’s case dropped, and represented terrorists seeking release from incarceration in Guantánamo Bay, and so Republican senators have reasonable worries that she’ll be soft on crime. It’s in the economic realm, however, that Judge Jackson constitutes the greatest threat to liberty, and has displayed the most questionable judgment. When Jackson in 2018 insisted that her district court had jurisdiction when 17 federal worker unions tried to get three of President Donald Trump’s executive orders pertaining to collective bargaining declared unconstitutional, she was humiliated
by the D.C. Circuit when judges appointed by presidents of both parties struck it down. As the D.C. Circuit noted, Jackson had claimed that the Federal Labor Relations Authority’s expertise in addressing the workers’ grievances, which the law directs the agency to do, “was ‘potentially helpful’ but ‘not essential to resolving’ the unions’ claims.” Therefore the unions should be able to turn to Jackson’s court. “But,” as the appellate court pointed out, “that is not the law. The question we must ask is whether agency expertise may be ‘brought to bear on’ the claims, not whether the expertise is essential.” The decision overturning Jackson added that “many of the claims” of the 17 unions, with which Jackson agreed, “are not so grand” as they suggest, requiring resolution by the judicial branch rather than an executive agency, “but rather require interpreting the Federal Service Labor Management Relations Statute (FSLMRS)—the very law that the FLRA is charged with administering and interpreting. Regardless, the Supreme Court has ‘clarified’ that ‘an agency’s relative level of insight into the merits of a constitutional question is not determinative.’” The signs are that the nomination of Jackson will be historic not only in terms of her sex and ethnicity, but in what it may come to mean, if she is confirmed, in judicial intrusion affecting the individual freedom provided by safe communities, a government free of senseless regulations and union-imposed burdens, and employers’ ability to succeed free of labor harassment. If her confirmation slides through as smoothly as expected, the public may one day wonder why this woman who made history wasn’t scrutinized with a more critical eye.
