The Daily Signal - What You Need to Know About Judge Ketanji Brown Jackson

Episode Date: March 22, 2022

Ketanji Brown Jackson may soon become the newest justice of the Supreme Court. Her Senate Judiciary Committee hearing began Monday. Democrats praised the historic nature of her nomination and Republicans raised concerns over her record.  But who is Ketanji Brown Jackson? How would she rule on critical cases if confirmed to the Supreme Court? Will she uphold the Constitution? On today’s episode of “The Daily Signal Podcast,” we share a conversation from Heritage Foundation podcast “SCOTUS 101,” hosted by Zack Smith and GianCarlo Canaparo. They sit down with Carrie Severino of The Judicial Crisis Network, Ed Whelan of the Ethics and Public Policy Center, and John Malcolm of The Heritage Foundation to discuss Jackson's judicial philosophy. They also explain how Republican Senators should handle questions during her confirmation hearing, and what we can learn from her rulings on past cases.  We also cover these stories: Supreme Court Justice Clarence Thomas missed oral arguments on Monday, due to ongoing concerns over his health. Virginia Tech swimmer Reka Gyorgy speaks out against the NCAA’s rule that allowed male swimmer Lia Thomas to compete as a woman.  Conservative satire site The Babylon Bee is in hot water with Twitter. Enjoy the show! Hosted on Acast. See acast.com/privacy for more information. Learn more about your ad choices. Visit megaphone.fm/adchoices

This is the Daily Signal podcast for Tuesday, March 22nd. I'm Virginia Allen. And I'm Doug Blair. Monday marked day one of Supreme Court nominee Katanji Brown Jackson's confirmation hearings. But what exactly does Jackson believe in as a judge? And how would she view her role on the Supreme Court? Host of SCOTUS 101, John Carlo Canaparo and Zach Smith sat down with three experts to discuss just that. John Malcolm, Carrie Severino, and Ed Waylon joined the pair for a roundtable discussion on the philosophy

of Judge Katanji Brown Jackson. But before we get to that conversation, let's hit our top news stories of the day. Today begins the second day of Katanji Brown Jackson's hearing before the Senate Judiciary Committee. Members of the committee gave opening remarks Monday and will spend time questioning Jackson today. If confirmed, Jackson will be the first black woman

to serve on the Supreme Court. Senator Chuck Grassley laid out what Americans can expect during the hearing this week. per PBS news. We will conduct a thorough, exhaustive examination of Judge Jackson's record and views. We won't try to turn this into a spectacle based upon alleged process fouls. Democrat Senator and Judiciary Chairman Dick Durbin dismissed the claims that dark money groups influenced President Joe Biden's nomination of Jackson. Instead, Durbin took time to take time to.

note the historic nature of Jackson's nomination. Take a listen. In it's more than 230 years, the Supreme Court has had 115 justices. 108 have been white men. Just two justices have been men of color. Only five women have served on the court and just one, a woman of color. Not a single justice has been a black woman. You, Judge Jackson, can be the first. Some Republicans, including Senator Josh Holly of Missouri, expressed concerns over Jackson's past decisions regarding sentences for sex offenders. Here's what he had to say via C-SPAN. What concerns me, and I've been very candid about this, is that in every case, in each of these seven,

Judge Jackson handed down a lenient sentence that was below what the federal guidelines recommended and below what prosecutors requested. And so I think there's a lot to talk about there, and I look forward to talking about it. Now, I will note that some have said that the federal sentencing guidelines, are too harsh on child sex crimes, especially child pornography. I've heard that argument a lot in recent days. The chairman quoted someone earlier today who takes that point of view. I'll just be honest, I can't say that I agree with that.

I mean, the amount of child pornography in circulation has absolutely exploded in recent years. Democrats hope to confirm Jackson before Easter. Supreme Court Justice Clarence Thomas missed oral arguments on Monday due to ongoing concerns over his health. Thomas was initially admitted to the hospital on Friday evening with flu-like symptoms. However, later testing confirmed that the justice did not have COVID-19. Supreme Court Chief Justice John Roberts announced Thomas's absence on Monday by saying, Justice Thomas is unable to be present today, but will participate in consideration and decision of the cases on the basis of the briefs and the transcripts of oral argument. Thomas spokeswoman Patricia McCabe stated that the

justice was feeling better and said his symptoms are abating. He's resting comfortably, and he expects to be released from the hospital in a day or two. Virginia Tech swimmer Rekha Giorgi is speaking out against the NCAA's rule that allowed male swimmer Leah Thomas to compete as a woman. Giorgi missed the cut to qualify to compete in the finals of the women's 500 free at the NCAA championship in Atlanta last week, the very race male swimmer Thomas took first place in. The Virginia Tech swimmer swam in the 2016 Olympics in Rio for her home country of Hungary. She says she believes the spot in the NCAA championship last week was taken from her

because of the NCAA's decision to let someone who is not a biological female compete. According to the New York Post, Giorgi posted on her private Instagram account that the NCAA allowing biological men to compete with women doesn't promote our sport in a good way. And I think it is disrespectful against the biologically female swimmers who are competing in the NCAA. The tech swimmer concluded her remarks by asking the NCAA to take time to think about all the other biological women in swimming. Try to think how they would feel if they would be in our shoes, make the right changes for our sport and for a better future in swimming. Conservative satire site, The Babylon Bee, is in hot water with Twitter.

On Sunday, Babylon Bee CEO, Seth Dillon, tweeted that Twitter had locked the Babylon B's account over a story titled, The Babylon B's Man of the Year, is Rachel Levine. Levine, who serves as United States Assistant Secretary for Health, is a biological man who identifies as a woman. Per Fox News, Twitter site. its rules against hateful content as the reason for the ban. Dylan wrote that Twitter would lift the ban 12 hours after the tweet containing the story was deleted. But Dylan has refused to comply, writing, we're not deleting anything.

The truth is not hate speech. If the cost of telling the truth is the loss of our Twitter account, then so be it. Now stay tuned for SCOTUS 101 hosts John Carlo and Zach's conversation with John Malcolm, Ed Wayland, and Carrie Severino, as they discuss Judge Katanji Brown Jackson. President Lincoln once said, Elections belong to the people. Here at the Heritage Foundation, we hold these words to be true.

However, for elections to truly belong to the people, the people need to trust their results. That's where the election integrity scorecard comes in. We created this tool so that citizens like you can discover the rules, regulations, and overall transparency of voting in your respective state. Find the election integrity scorecard in the Heritage Foundation's website at heritage.org slash election scorecard.

Well, we are packed into the studio like sardines today to discuss Judge Jackson's nomination. And I wanted to start off. We're going to hear a lot in this next week about Judge Jackson's judicial philosophy. So maybe, Ed, you can start with what is the judicial philosophy? What does that mean when we hear politicians talk about that? Well, the term judicial philosophy captures a nominee's basic approach to the core task of interpreting the Constitution and federal statutes. Does the candidate embrace, say, principles of originalism and textualism that constrain how to go about interpreting those laws? Or does a candidate have a freewheeling resort to a whole mix of things that enables a.

the candidate to decide that the law means whatever he or she wants. Arguably, there's some other alternatives, but that's the basic divide. I mean, you have living constitutionalism on the left, which is basically an excuse for imposing your own moral or policy preferences in the name of the Constitution. And you have originalism among legal conservatives, which aims to set forth a methodology, that you can say, hey, this is or is not a sound exercise of originalism. How could one ever say that Ruth Bader Ginsburg wasn't faithful to living constitutionalism when the approach is so open-ended that, you know, it means whatever she wants it to mean?

So that's the basic, you know, question here. And what we've had, if I may, over the last few decades, is a decisive shift in the confirmation process from a model of deference to the president to a model that focuses on judicial philosophy. And just as Democrats have opposed nominees of Republican presidents based on judicial philosophy, it's entirely legitimate for Senate Republicans to do so to Joe Biden's nominee. Well, so far, Judge Jackson has avoided questions about her judicial philosophy when she was nominated for the lower federal courts. Does anything stand out from her recent Senate questionnaire that she submitted?

And I'll open that to anyone. Well, I think the most disturbing thing here is that she seems to be trying to claim that she has no judicial philosophy, which, you know, there's two different directions that could be pointing. One is she really just is singularly unreflective on how to interpret the Constitution. When Senator Cruz asked her during her last hearing, whether she believed in the living Constitution, she didn't say yes or no. she just basically said, I haven't really thought about it. I hasn't come across my desk to interpret the Constitution yet, so I haven't thought about it. That's something I would hope you would have thought about by the time you finished con law class in law school, let alone eight years in the federal bench, and now being on the appellate court. So that's really concerning.

So either she really hasn't thought about this, or she wasn't fully being candid to the committee, and neither of those is a great option. And then in response to questions from Senator Grassley, she clarified, because he asked about a, about a, specifically originalism. And she basically claimed that, well, I can't really talk about that because I'm bound by Supreme Court precedent as to how to interpret the Constitution. I think that would probably be news to a lot of federal judges who don't think of themselves as originalists, that the Constitution is somehow mandated to be interpreted in an originalist fashion by the Supreme Court. It's great news, but I think that would be news. So I think at this level of the hearings, we're going to have to really get to the point of saying, okay, you can't

pass this off on I'm following precedent or I'm bound to follow precedent because we all know that the Supreme Court justices aren't bound to follow their own precedent. They have the opportunity to reconsider that and rethink that. And to simply say, I don't know how I would interpret it. I don't know how as a senator in good faith, you can vote for a judge who's effectively a complete black box, no idea what they're going to do with the Constitution. We have to have a sense that they understand how to interpret it. And you ideally would want not simply them saying, oh, I will interpret it according to the original meaning and et cetera, but be able to articulate what that means, be able to show examples in their prior career that shows that they really do know how to apply that.

That's something I would expect of certainly any nominee. If someone said, well, is this person a good nominee, you know, when Trump was considering judges, I would want to see not just that they know how to say the right thing, but they actually can show that they've done in practice. I think that's going to be a challenge for her because, as she said, she really has. hasn't grappled with those issues and has acknowledged that she hasn't thought through them deeply. Look, we know that President Biden wasn't just looking for a black woman to nominate. He was looking for a black woman progressive. And there's lots of legal savvy in the White House. It's difficult to imagine that they've failed to come up with what they wanted. You look back to 2005 when Joe Biden threatened to filibuster the possible nomination of Janice Rogers Brown, who would have been the first African-American female justice.

He threatened to filibuster her on grounds of judicial philosophy. And, you know, here there's ample reason to believe based on Kataji Brown Jackson's entire career, her mentors, that she is a progressive. And it would be, you know, remarkable for her to demonstrate that she's not. Well, let me jump in a little a little bit. So, one, the fact that she was the favor of groups like demand justice, you know, they have to have some inkling that she is indeed a progressive. on the issue of judicial philosophy. I mean, not only did she go to Harvard Law School, she clerked for three federal judges, including Justice Breyer, the justice whom she would replace.

She said last June when she was being elevated to the D.C. Circuit, she's bobbed and weaved is what she's done. She said she didn't have a judicial philosophy per se, which is a remarkable thing for somebody who'd been a sitting judge at that point for eight years. She then went on to say, well, as a lower court judge, who am I to question the methodology that was employed by the Supreme Court. Well, you know, the Supreme Court as a whole doesn't have a judicial philosophy. It's individual justices that have a judicial philosophy.

And now what she's saying is, well, you know, I really can't comment on that because if I'm a sitting Supreme Court justice, this may be part of legal issues that come before the Supreme Court, which is, of course, silly because what they don't comment on is, you know, how they view particular questions that the court will be called upon to resolve. They do not have, the court is never going to resolve what is the proper judicial philosophy as a legal question. And in fact, many current and past Supreme Court justices have written books and given speeches about their judicial philosophy. Indeed, Justice Breyer had a whole series of debates, which I commend to people to watch on YouTube with Justice Scalia about living constitutionalism versus originalism. She has tried to duck this issue and I think that she should be pressed very, very hard to give an answer. add to that and also piggybacking on what Ed just said, which is that Joe Biden has talked about

how important the concept of unenumerated rights are. He waxes rhapsodic about the Ninth Amendment. It's potential as a font of, you know, as a source for unannumerated rights. And he said that his nominee is going to believe in unannumerated rights. Well, she has a view, presumably, because Biden's asked her about it, about unenumerated rights, then certainly she has a judicial philosophy. You know, a lot of people talk about how, and it can be frustrated. You watch these confirmation processes, and there are things that no judge or nominee for a justice is going to talk about. They ask her about specific cases, specific issues coming before the Supreme Court. It's appropriate for them to say, I can't discuss this. But they don't just say that and

leave it be. They generally will give an illustration of how they understand the field. And it is absolutely fair game to talk about what is your broad overall approach to the law. And that's something, you can go back over the last many judicial hearings, and you can see that they're perfectly happy to talk about that. It's the specific issues they can't talk about because they can't prejudge a case. I just say that we don't need to try to read through dozens of FOIA rulings from her on the district court in order to glean her judicial philosophy. It'll be very simple to ask her, say about the use of foreign law, contemporary formal foreign law determining the meaning of the Constitution. This is a great proxy issue for constitutional interpretation as a whole. And I would be amazed if she is going to repudiate

the position that Stephen Breyer took on this issue. Now, to be sure, Justice Sonia Sotomayor, in her confirmation hearing, worked very hard to dissemble her views on the matter. But, you know, this is going to be a a bellwether issue that signals quite a lot. And it's just far-fetched to think that Katanzi Brown-Jackson is going to have an approach to constitutional and statutory interpretation that Republican senators should find acceptable. So besides asking about her approach to international law, what are some other questions that senators could ask that would tease out her judicial philosophy? Well, less so in the area of constitutional interpretation because she hasn't written a lot in that area. She has written some in that area. So, for instance, she said that there was

an anti-pandering law in Washington, D.C., and some people were challenged that, who were, you know, begging, basically. And she said that, you know, that that law might very well be unconstitutional. Begging is a form of expressive conduct. But she hasn't had a long history in terms of interpreting the Constitution. She has dealt a lot with administrative law and has also interpreted various statutes. So you can get a sense as to whether she is a textualist or not. She's talked a little bit also about things like separation of powers in the McGahn case, which has gotten a lot of attention in which she rejected President Trump's invocation of executive privilege and forced Don McGahn, the former White House counsel, to testify before

the House Judiciary Committee that was investigating alleged collusion between the Trump administration or Trump and the Trump campaign and Russia in connection with the 2016 election. So you can get hints. You can certainly ask her about anything that she's written before. That's all fair game. But she does not have a lot of cases in which she's interpreted the Constitution. A couple of criminal cases where she's interpreted things like the Fourth Amendment, but not a lot. And in so many of her ruling, she was indeed constrained by precedent.

So I'm not sure that that's going to be a very promising field to explore. But there's plenty of room to ask her about conversations she's had in recent years about different topics. Look, the Dobbs case has been huge for the last six months or so. It's inconceivable that she hasn't had discussions with folks about that. That's entirely fair game to ask her what she's had to say about that. Well, let me just add one. On the topic of abortion, she will, of course, not answer. But it's inconceivable to me that she is not pro-abortion.

I say that based on one thing, which is she worked on a brief when she was in private practice, an amicus brief that was defending the constitutionality of a Massachusetts law that established a buffer zone around abortions. I cannot imagine that if a partner went into an associate's office and said, what do you have used on abortion? And the associate said, I'm pro-life. The partner would say, you're just the person I want working on that brief. I'm assuming it's a matter of conscience, the associate would say, look, I just don't feel

comfortable working on that brief or, heck yes, count me in. But, John, if I may, I'm not suggesting that she would be obligated to present her legal view on whether Roe was rightly decided or should be overturned. I think she is obligated to answer questions about what she has said to others about the Dobbs case in the last several months. And I don't see on what basis she conduct that. Yeah, that's right. Yeah, just as if she had given a talk on that, although that's obviously easier.

to access. You know, some of the comment she made, and again, it's a little hard to get to because she's not going to want to comment on cases going forward, but she very frequently in her previous hearings dodged a lot of things by just saying, I'm bound by precedent. One exchange, for example, with Senator Hawley, he asked her about religious

freedom in the context of a Christian school board on which she sat. And it was kind of telling her response because he read some of the mission statement, which included things like the Sanctity of Life, and the respect for traditional marriage between one man and one woman, and she kind of ran for the hills. She said, I'm not sure that was,

I haven't ever necessarily seen that mission statement. I don't know if it was on there when I was in the board. I don't really agree with everything, people whose boards, on whose boards I sit, but I will say that because the Supreme Court has recognized this religious freedom, I'm bound by Supreme Court precedent, I think that's a little telling, both in that she was so concerned about her, about this school's beliefs, but also that she tied it to Supreme Court precedent, not really, you know, obviously the First Amendment protects religious freedom, and therefore that's something that I would stand back. So she's used this deference to precedent in many occasions to kind of get out from under things, and that's something that is not an escape route

she should be able to have at this hearing, and I hope the senators recognize that and hold her to that. I'll tell you one question I hope that she's asked. Sticking on this Montrose school issue, the Kerry just raised. So to those people who don't know, this was a now defunct Christian school. on the board of advisors or trustees or whatever it was. And they ended up having a statement of principles. And it was things like defending the traditional view of marriage. And she ran away from that and said, oh, yes, I served on the school and helped with fundraising, but I was unaware of this statement.

I think she should be asked, you know, someone should read this statement to her and say, look, do you think that somebody who believes this should be disqualified from being a judge? If she says, well, if anyone believes that they shouldn't be a judge, then, you know, they should vote her down. And if she says, I think that people who believe that are perfectly fine being judges, you know, then anyone who comes in a Republican administration and expresses those beliefs, at least from Catanci Brown Jackson has gotten a pass. And if she says, no, I don't think that anyone who believes that should be a judge. She should be reminded that the Constitution provides that there's no religious tests for judges.

You know, one other area that she was asked about and tried to avoid was about court packing. And this, again, falls into the category of things that judges can comment on because Justice Ginsburg Justice Breyer had both commented them in their opposition to court packing. Some of the groups that are advancing her nomination have been the very same ones who had been the most vocal in favor of packing the Supreme Court. And so, you know, that's a fair question. This is not a question that's likely to come up for the Supreme Court. Everyone kind of agrees it's constitutional to change the number of justices. But is this something that she would endorse, particularly in light of the groups that have favored her.

And she absolutely is free to comment on it just as the other justices have. I did want to jump in and ask about a specific issue that might come up at the confirmation hearings. We've heard some in the news about her role sitting on a Harvard board, and there's obviously the Harvard admissions case that will come before the court next term. What do you expect we'll hear about that at her confirmation hearings? Well, I think she'll be asked whether she commits to recuse herself from this case involving Harvard. And I think the recusal question would be simple if you substitute Harvard with Bank of America or Coca-Cola. She was sitting on what Harvard calls one of its two governing boards at the time that this lawsuit challenging and existing policy and continuing policy was pending. And I think it's a no-brainer if the party is Bank of America or Coca-Cola.

and I don't understand how she thinks that she could take part in this case. Now, she hasn't said that she can, and she actually recused herself from at least one case involving Harvard when she was a district court judge. So perhaps she will commit to recuse. How do you think this confirmation will be different than her two previous ones, or three previous ones, if we include the U.S. Sentencing Commission. A lot more people are going to be paying attention to this one. I can't remember the last Sentencing Commission confirmation. process I tuned into. You know, there's a long, I think some people have made a lot about the fact that she did get

some Republican votes, three Republican votes in her last confirmation that was relatively recent within the last year. But we have to remember, it's a very different thing, obviously, to be confirmed to a district court or a commission or an appellate court to the Supreme Court. You know, I think if you want an example, look at Justice Thomas's own confirmation when he was confirmed to the D.C. Circuit, it was, he was confirmed by voice vote. Like, they didn't even have a roll call vote. No one had to put their name behind their vote.

He just was kind of moved on in. And then, you know, obviously when his Supreme Court hearing came along, things went very differently. And ironically, actually, it was Joe Biden himself, who was Senate Judiciary Committee chair at the time, who right after Thomas was confirmed to the appellate court, took him aside and said, hey, if you're appointed at the Supreme Court, don't expect it to go this smoothly. Which Thomas was, you know, found kind of chilling because, hey, he just, you know, you know, minutes ago been put on the appellate. court. And B, he thought that was pretty tough of a hearing. They did kind of go after more than you would typically see for that era type of confirmation hearing. And so he thought, how is this going? But it's true. There's a real different. And you imagine, it is a higher standard. Just as we were saying, it's, you're not bound by precedent anymore. There is no backstop of a Supreme Court that can

correct erroneous decisions anymore. So it should be a higher standard for this nominee. And this is why we're going to spend so much more time asking her questions. But I also think the senators need to keep that in mind of this is a higher standard. It's a much more authority with this job. And so the standard should be in keeping with that. So Joe Biden, who was chairman of the Senate Judiciary Committee at the time, actually put on the record something along the lines of now, you know, there's a different standard for Supreme Court justices. And if you want to cite Exhibit A for that, I mean, so Joe Biden was part of that voice vote, didn't object to Clarence Thomas getting. on to the D.C. Circuit, but he led the charge to try to defeat Clarence Thomas when he was

nominated just a year and a half later to the Supreme Court. So how should Republican senators approach this confirmation hearing? Well, I think that they should make judicial philosophy front and center. The goal here should be to highlight that Katanji Brown-Jackson shares or will certainly not repudiate the left's view of the Constitution as some sort of malleable. document that can be twisted and turned to mean whatever the left wants it to mean. The goal here should be to inflict political costs on those senators who support her nomination and on the White House.

Look, I think it's important, I think that's right to draw that kind of a contrast. Let's face it, all 50 Democratic senators are back in Washington. Not a single one of them has voted against any of the judicial nominees that Joe Biden has sent up to the hills. So the odds are that she's going to get confirmed. But I think drawing a contrast and saying, you know, look, elections have consequences in terms of the kinds of justices that you get. You elect a Democratic senator or Democratic Senate.

This is what you get. You elect a Republican senator and a Republican Senate. This is what you get. And, you know, we have a presidential election in two years and we have midterm elections this year. And, you know, both the presidency and the balance of control in the Senate. or will be in play. Yeah, and all those elections have consequences. I think it's also important because, you know,

we've seen from this president so many times where he presented himself as a moderate and then is governing in a very, kind of the most radical and progressive way he can. And I think it's important to have this discussion during her confirmation process because if the Republican senators aren't very clear about this, he'll simply go around continuing to present her

as if she's a moderate. Remember, he had a list of short-listers that everyone was talking about, And by all accounts, he chose the most radical person in the list. He chose the most progressive person on this list. So one might assume that with such a bare majority, not even a majority, just that tie vote in the Senate, you might have gone for a more moderate pick. But that was not what he chose.

So to the extent that he's going to try to present her as someone who's just right down the middle, that's simply not true. And we need to make sure that we highlight the aspects of her record and her approach to the law that make that clear. One of the questions that I hear from Senate Judiciary Staffers is if our senators play nice with Judge Jackson, will it encourage Democrats to play nice in the future? What do you think? Heck, no. How's that working for you so far? Yeah, you know, I don't think if we play about the markets of Queensbury rules that all of a sudden the next time around, they're going to say, oh, you were so nice last time, we're going to be nice to your nominee.

I just that those days are gone. Well, we should be nice in the sense that the hearing should be conducted in a dignified way. Right. There should not be smears below the belt attacks, distortions. You look at the way that, you know, the left, say, on Gorsuch suddenly elevated this frozen trucker case, no one had ever heard of into some big indictment of him. There should not be a distortion of her record. This should be a dignified debate.

And that's true whether or not Democrats reciprocate. I think Democrats actually paid a price in the 2018 election for their behavior on judicial confirmations. But I think Republicans will be most effective if they don't stoop to the level that Democrats have stooped to. Yeah, but I do think, as Ed described earlier on, the different standpoint. is gone. And it is particularly galling to me to have someone like Joe Biden, you know, potentially appealing to that. When he's the one, he not only chaired the Thomas confirmation hearings, which were a complete debacle and a, you know, media circus, but the Bork hearings. I think most people point to that is the real turning point that where we went from a more

deference standard of judges to the current model. And it's taken Republicans of several generations almost to catch up because I think people kept on wanting to say, hey, maybe if we're, maybe if we just go back to that one, that would be nicer for everyone, right? I'm sorry, the times have definitively changed. And you can ask Lindsey Graham, who I think is maybe one of the last holdouts for this philosophy. And remember his impassioned speech during the Kavanaugh hearings. Well, I voted for Sotomayor. I voted for Kagan.

Why are you guys not reciprocating? At a certain point, you know, fool me one, shame on you. Fool me twice. Shame on me. And I think it's been tried and it's very clear that the Democrats are not interested in reciprocating on a return to the deference standard. And I think there actually is a lot to be said for remembering that these are, this isn't just a, you know, let's play nice and politicians all are just politicians working with each other and playing footsie under the table. There actually are real significant differences between different approaches to the Constitution in today's world.

The division is very stark. And so I think, I think senators who themselves take an oath to uphold the Constitution, I have to keep that in mind and recognize that simply passing through anyone who comes along, even if they have a judicial philosophy that would really do violence to our founding document, that isn't in keeping with their own oath. On Biden's record as a senator, let me add that he also voted against Chief Justice Roberts in 2005, not only voted against, but sought to filibuster Samuel Lito in 2006. So, yeah, the model of deferring to the president and looking narrowly at so-called objective qualifications that exclude judicial philosophy is dead and gone.

It's not going to be able to be revived so long as we have the sharp divide on judicial philosophy that we have. And any Republican Senator who invokes that is dreaming. Assuming that Judge Jackson is confirmed to the court, do you have any idea who might take her place on the D.C. Circuit? You know, some people have talked about some of those other shortlisters, like Judge Childs, for example. She's already nominated to the D.C. Well, that's right. But, you know, potentially, Justice Krueger, who knows? I think, yeah, look, Joe Biden tried to get Leondra Kruger to come to Washington, asked her twice

to be the Solicitor General. She turned it, she turned it down. But this is Lifetime. Yeah, no, no, I was about to say it. But now a lifetime, tenured position on the D.C. Circuit, and you're thinking, I might be next to be on the Supreme Court, I think that her calculus may change. And I would expect that she would be an odds-on favorite to be the nominee. And now they will resume the confirmation hearing from Michelle Childs to be on the D.C. Circuit. So they may both end up there. Yeah, well, at the risk of going into the weeds, there was a 10-month behind-the-scenes battle over the David Tatel vacancy that ultimately led just before Christmas to the nomination of Michelle Childs. I think that a runner-up in that battle is very likely to be the nominee.

My own guess is that Leandro Kruger is not interested in moving her family out to D.C. and leaving the California Supreme Court for this. Maybe I'll be shown to be wrong. Look, Hispanics have gotten the short end of the stick on Biden's diversity nominations, and I think they'll be looking hard to actually win one of these nominations. So assuming that Judge Jackson is confirmed at the end of all of this, how do you think she changes the Supreme Court, if at all? You know, I think some people make a lot of the, oh, well, this is just a Democrat nominee for a Democrat nominee.

It's a liberal for a liberal, so, you know, no big deal on the change there. But I think that overlooks, first of all, some of the distinctions of Justice Breyer's own temperament and his style of judging, which was much more pragmatic than, say, you know, a Sotomayor or a Ginsburg on the bench. So of the liberal members of the court, he was the one that was much more likely to come to some, you know, kind of middle ground with the conservative members of the bench. I doubt that Jackson is going to fill that role. So to the extent that, you know, at least in hopefully dissent, that may push things farther

to the left on the court, you know, we're going to see fewer hypotheticals, which is I'll sort of miss. They were very confusing, I think, sometimes for the advocates, but kind of a fun feature of Justice Breyer. But I think we also, and this also, you know, when people say, well, let's not focus on this too much. They're in the minority. Remember, Justice Thomas was in the minority when he, by a dramatic minority, a minority of like two, when he first came on the bench. And now he's the intellectual leader and heavyweight on the court. So we don't really know what the future will hold.

I hope that the American people's, I think, desire to have originalist justices will continue to push that forward and the interest there. But, you know, we can't predict that. So, you know. So one thing I think I think it's a tough to answer to that question is that there have been long periods of time of years where there were no change in personnel on the court. And if you ended up getting one change, all of a sudden you could discern a difference. There have been three new justices in the last five years. So it's hard to know what the marginal change will be of a fourth new justice. on the court.

All the variables are changing at once. Yeah. Well, this has been a great conversation. Thank you all so much for taking the time to join us today. We really appreciate it. And we hope to have you all back again in the future. Thanks for having us. Thank you.

And that'll do it for today's episode. Thanks so much for listening to the Daily Signal podcast. You can find the Daily Signal podcast on Google Play, Apple Podcast, Spotify, and IHeartRadio. Please be sure to leave us their review and a five-star rating on Apple Podcasts and encourage others to subscribe. We'll be back with you all tomorrow. The Daily Signal podcast is brought to you by more than half a million members of the Heritage Foundation.

It is executive produced by Virginia Allen and Kate Trinko, sound designed by Lauren Evans, Mark Geinney, and John Pop. For more information, please visitdailysignal.com.