Today, the Senate Judiciary Committee begins its confirmation hearings for Ketanji Brown Jackson, President Biden’s nominee to replace Justice Breyer on the Supreme Court. Of course, much has been made of the fact that Judge Jackson, if confirmed, would be the first black woman on the Supreme Court. As Cato scholars and many others have noted, however, she would also bring much-needed professional diversity to the bench. As my colleague Clark Neily recently stated:

Unlike eight of the nine sitting Justices, Judge Jackson has never served as a prosecutor or other courtroom advocate for government, and she would be the first Justice since Thurgood Marshall with criminal defense experience. As Cato’s research has shown, the federal judiciary is wildly imbalanced in favor of former government lawyers versus former public defenders and public interest lawyers. Some of the most important cases the Supreme Court hears involve individuals squaring off against police, prosecutors, and other public officials in criminal and civil rights cases. The government’s perspective is already well‐​represented among the Justices in those cases—a Justice Jackson would provide a new and refreshing point of view.

But some conservative commentators and policymakers have brushed off the relevance of such diversity, claiming that the only relevant consideration for a judicial nominee should be whether they will “enforce the law.” For example, at Heritage, John Malcolm and Thomas Jipping argue that calls for “personal and professional diversity” on the bench actually reflect a desire simply “to appoint judges who will deliver results that favor certain groups and serve certain interests,” and they contrast this vision of judging with “the kind of justice who serves the law and seeks impartial justice.” Sen. Rick Scott (R‑FL) similarly stated that on all judges, the only thing he really cares about is whether judges understand that their “job is to interpret the law, enforce the law, but not make new law.”

Such objections will likely find no purchase with progressive critics of doctrines like textualism and originalism, as such critics generally doubt the desirability (or even possibility) of anything like “judicial objectivity” in the first place. But what about those of us who are proponents of such methodologies? If, as the Federalist Society’s third principle goes, “it is emphatically the province and duty of the judiciary to say what the law is, not what it should be,” then why is demographic or professional diversity relevant for a judicial nominee?

This is a fair question, but the basic answer is that it assumes a false dichotomy—i.e., that there’s some inherent conflict between a judge drawing from their formative personal and professional experiences and their willingness to be objective arbiters of the law. To the contrary, the federal judiciary (especially the Supreme Court) will be more capable of fairly and effectively enforcing the law if its members reflect a diversity of legal backgrounds—including, and especially, Justices who have experience representing individuals in adverse proceedings against the government.

In the rest of this post, I’ll elaborate on two fundamental reasons why professional diversity, rather than being some extra-legal desideratum, in fact, serves the goal of “enforcing the law.” I focus here specifically on professional diversity because that’s the most urgent problem with the current makeup of the federal bench, but many of these arguments could apply equally to various forms of demographic diversity, such as race, sex, and religion.

I. Professional diversity gives the Court a broader range of expertise and insight for making decisions that require practical judgment and discretion.

As a threshold matter, let me make clear that I heartily endorse the general principle that judges should say what law is, not what it should be. I’m a card-carrying member of the Federalist Society, and I believe in textualism and originalism as judicial methodologies—that is, when judges interpret a statute or provision of the Constitution, their goal should be to apply the plain meaning of that text as it would have been understood at the time of its adoption. I believe that legal disputes generally admit of rational resolution, and that the job of judges is to resolve such disputes according to law, not to satisfy any free-floating sense of “justice” or “equity.”

Stated as such, however, I haven’t said anything especially controversial, or even noteworthy, as it pertains to the modern federal bench. As I discussed in more detail in connection with Justice Barrett’s confirmation hearings, this sort of jurisprudence characterizes not just “conservative” judges, but basically the entire federal judiciary:

It was, after all, Justice Kagan who famously said in 2015 “we’re all textualists now,” and who said at her confirmation hearing that, with respect to the nature of deciding cases, “it’s law all the way down.”

This is also the judicial philosophy Judge Jackson herself has espoused. In response to questions asked during her confirmation hearings last year for the D.C. Circuit, she wrote that “[a] judge has a duty to decide cases based solely on the law, without fear or favor, prejudice or passion.… [T]o the extent that empathy is defined as one’s ability to share what another person is feeling from the other person’s point of reference, empathy should not play a role in a judge’s consideration of a case.” And with respect to her approach to interpreting statutes, she wrote:

I give the statute’s text controlling weight. I have considered the meaning of the terms that the legislature used, the structure of the statute as a whole, and other traditional tools of statutory construction, including canons of statutory interpretation.… I have not considered the meaning of a statute to change as social norms and linguistic conventions evolve.

Now, one could reasonably object that we learn little about judicial nominees from such bland statements—indeed, the whole point of my previous blog post was that we’re not actually asking nominees challenging or interesting questions about their jurisprudence. But the issue isn’t whether we should doubt the sincerity of nominees who profess a commitment to judicial impartiality; the problem is that many, if not most, questions that come before the Supreme Court—especially in the most controversial cases—don’t turn on such pure questions of textual interpretation.

At the risk of stating the obvious, the Constitution contains many provisions written at a high level of generality. Some noteworthy examples include “the free exercise of” religion and “the freedom of speech”; prohibitions against “unreasonable searches and seizures,” “[e]xcessive bail,” “excessive fines,” and “cruel and unusual punishment”; the Fourteenth Amendment’s protection of the “privileges or immunities of citizens of the United States,” “due process of law,” and “equal protection of the laws”; and Congress’s power “[t]o make all Laws which shall be necessary and proper for carrying into Execution” its other enumerated powers.

At least with respect to such provisions, “enforcing the Constitution” requires not just textual interpretation, but doctrinal construction—that is, judges first have to interpret the semantic meaning of constitutional text, but they also have to translate the semantic content of legal text into applicable legal rules. In other words, even if there were consensus on the meaning of constitutional provisions, that wouldn’t be enough to resolve individual disputes. We might agree that the Equal Protection Clause was understood to protect all people from arbitrary and invidious discrimination, but how are courts supposed to determine which kind of discrimination is arbitrary and invidious? What doctrinal rules, presumptions, burdens of proof, balancing tests, etc. best give effect to this general constitutional principle?

These simply aren’t the sort of questions that can be answered with a FedSoc 101 definition of textualism and originalism. Rather, they require pragmatic legal judgments that inevitably draw from a judge’s understanding of the law-making process, the administrative state, the realities of civil and criminal litigation, police practices, prosecutorial investigation and enforcement, and even prevailing societal norms (consider the “reasonable expectation of privacy” test for the Fourth Amendment). Such judgments require not just knowledge, but also the sort of deep, intuitive understanding—what James Scott calls “metis”—that can only come from extensive personal experience.

The rub, of course, is that a Court whose members have a broader range of legal backgrounds will have a broader range of expertise and insight to draw from, and thus the Court as an institution will be more adept at crafting nuanced, effective doctrines that give practical effect to abstract constitutional provisions. At present, however, the Court is woefully lacking in metis in several domains essential to the functioning of our legal system. When Justice Ginsburg died in 2020, the Court was left without a single Justice with experience as a civil-rights attorney. And for over thirty years (since Justice Marshall retired), the Court has lacked any member with significant experience as a criminal defense lawyer. The problem with this gross imbalance isn’t just the potential for bias, though that’s a reasonable concern too; it’s that the current Justices are necessarily missing a certain practical perspective on the day-to-day realities of both criminal defense and civil-rights litigation. It’s unwise and unreasonable to expect the Court to fairly and effectively craft doctrines for vast domains of law when the Justices’ own experiences in these domains are either one-sided or non-existent.

Finally, even aside from the interpretation/​construction distinction, Supreme Court Justices are constantly called upon to make decisions that inherently require practical discretion—the most obvious of which are what cases to hear in the first place, given that the Court only grants a tiny fraction of cert petitions. A discretionary docket means the Justices must assess the relative significance of various legal questions, which is a different sort of inquiry than how to actually decide cases. Choosing which petitions to grant is, at least in part, both a values-driven inquiry about which issues are most important and a pragmatic inquiry about the need for and consequences of the Court’s resolution. Professional diversity is therefore essential to ensure that the Court as an institution pays heed to a wider range of legal questions.

With respect to Judge Jackson in particular, I’ll just note that there are several major questions the Court has conspicuously refused to take up, which just so happen to implicate the power of individuals to assert their constitutional rights against the government. In the criminal context, the Court has repeatedly refused to consider the constitutionality of “acquitted conduct sentencing,” in which a judge sentences a defendant based upon alleged conduct underlying charges for which they were acquitted by a jury. And as I have discussed at length, the Supreme Court has declined to hear any case asking whether qualified immunity should be considered. Perhaps a Justice whose formative professional experiences were representing individuals against the government, rather than the other way around, would more readily recognize the importance of such questions.

II. Professional diversity helps protect the Court against a wider range of constitutional errors.

For the moment, put aside everything I said above about the necessity of practical judgment in crafting doctrine and the Court’s discretionary docket. Let’s assume a simplified and mechanistic view of how the Court decides cases, in which the Justices’ job is simply to discern the one true correct result according to objective legal principles—“calling balls and strikes,” if you will. Even on such a narrow understanding of the Court’s role, professional diversity would still be essential, if for no other reason than to ensure the Court more consistently reaches the “correct” answer.

After all, even the most ardent legal rationalist would have to admit that some constitutional questions are difficult, even if there is in principle a correct answer. Thus, judges who are sincerely trying to get the law right might nevertheless make mistakes, due to some combination of implicit bias, inattention or indifference, lack of understanding, the inertia of past mistakes, political or social pressure, or simply the difficulty of the particular question presented. The reason that appellate decisions are issued by panels of judges is because we assume that the process of deliberation and discussion helps catch errors and promotes the uniformity and predictability of law.

But if judges are drawn from only a narrow segment of the legal profession, then the benefits of deliberation and discussion are far less likely to obtain. Judges can’t help identify and correct implicit biases from their colleagues if they all suffer from the same implicit biases. They can’t consistently correct their colleagues’ legal or factual misunderstandings if their domains of expertise are substantially identical. They can’t fully confront the challenge of when and how to address mistaken precedent without fresh eyes on those mistakes and fresh voices explaining the need for reconsideration. And they can’t give full and fair effect to the complex, nuanced web of constitutional structures and rights when their members are drawn from only one half of constitutional advocates.

What does all this mean for Judge Jackson in particular? Well, it’s hard to predict with confidence how a Supreme Court nominee will rule on discrete constitutional questions based only on their lower-court decisions, and Judge Jackson will almost certainly not offer any such forecasts during her hearings. But it does seem to appear that Judge Jackson may be uniquely attuned to one of the most glaring failures of constitutional law in the modern era⁠—the practical elimination of the jury trial as the primary means of adjudicating criminal cases.

The Founders understood that the citizen jury was an indispensable check on state power, and they designed their constitutional order on the understanding that the imposition of criminal penalties would require the unanimous assent of ordinary citizens. The jury trial is thus the only right mentioned in both the original Constitution and the Bill of Rights—Article III, Section 2 states in mandatory, structural language that “[t]he Trial of all Crimes … shall be by Jury,” and the Sixth Amendment not only guarantees the right to a jury trial generally, but lays out in specific detail the form such a trial shall take. So fundamental was the jury trial to the very concept of criminal justice that it was practically the only thing on which the Federalist and Anti-Federalists firmly agreed. As Alexander Hamilton wrote in The Federalist, No. 83:

The friends and adversaries of the plan of the [Constitutional] convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists in this: the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government.

Yet despite its intended centrality as the bedrock of our criminal justice system, the jury trial is on the brink of extinction. More than 97% of federal criminal convictions are obtained through plea bargains, rather than the constitutionally prescribed mechanism of jury trials, and the states are not far behind at 94%. And there is ample reason to conclude that a huge proportion of these pleas are inherently coercive, as evidenced if nothing else by the fact that even factually innocent defendants regularly plead guilty. But federal courts in general and the Supreme Court in particular have, for the most part, stood by helplessly while coercive plea bargaining steadily erodes the jury trial to the point of functional impotence. For example, in Bordenkircher v. Hayes, a defendant accused of forging an $88 check was told that, if he refused to take a five‐​year plea offer, he would be re‐​indicted as a habitual offender and face mandatory life in prison. The Supreme Court found nothing problematic about using such a threat to convince a defendant to accept a five‐​year plea and allowed the life sentence to stand, since Bordenkircher had refused the deal.

In light of these grave constitutional concerns, it’s encouraging to see that Judge Jackson wrote her college thesis on “The Hand of Oppression: Plea Bargaining Processes and the Coercion of Criminal Defendants” (pages 104–254 of the linked PDF). To be sure, there’s some risk in reading too much into a judicial nominee’s past writings, especially from so early in their career. But this particular paper is an extensive, thoughtful, and comprehensive analysis of how contemporary plea bargaining is not only inherently coercive, but fundamentally ahistorical and contrary to the Founders’ understanding of criminal adjudication. It’s also no surprise that someone keenly aware of how criminal defendants are regularly coerced into giving up their trial rights would devote a major portion of her legal career to criminal defense and sentencing reform.

If one hopes that Judge Jackson brings this perspective to her role as a Supreme Court Justice, does that reflect a “results oriented” approach to her nomination? In a sense, yes, but not in any way that’s inconsistent with the more general imperative that judges should say what the law is, not what it should be. Consider the argument made by conservative organizations like Heritage and First Liberty that the Supreme Court should reverse Roe v. Wade and permit states to decide whether or not to restrict abortion access. If conservatives therefore prefer judicial nominees they think are likely to agree with this position, does that mean they’re not serious about the idea of judges as neutral arbiters of the law? Of course not. They would argue, reasonably from their perspective, that they don’t want judges to rely on their opposition to abortion instead of relying on the Constitution; they would argue that prevailing doctrine is contrary to the Constitution, and they simply want judges who will recognize that. Whether or not one agrees with this object-level take on abortion doctrine, there’s nothing inherently inconsistent with being a general believer in judicial objectivity and also wanting to see that objectivity reflected in particular domains.

Well, just so with the jury trial, and the many, many other respects in which modern doctrine fails to adequately enforce the constitutional rights of criminal suspects and defendants. The relevance of Judge Jackson’s professional background here is not that she will or ought to be “sympathetic” to criminal defendants in some free-floating sense; it’s that she may be uniquely positioned to help identify and correct some of the most pervasive constitutional errors that exist today, in large part because of her professional background.

* * *

Nothing I’ve written here should be taken as a solid prediction about how Judge Jackson might rule on any given issue, nor even as an unalloyed endorsement of her nomination⁠—indeed, it would be surprising if I didn’t have frequent disagreements with her rulings as a Justice. Nor do I mean to diminish the importance or propriety of inquiring into a nominee’s judicial philosophy (though as I’ve written previously, modern confirmation hearings aren’t doing this in any meaningful way). But enriching the professional diversity of the Court, while not sufficient grounds to support any particular nominee, is itself a worthy goal precisely because it will help ensure the faithful enforcement of the entire Constitution. If confirmed, Judge Jackson would bring much-needed diversity and balance to a Court presently lopsided in favor of former government advocates, and that is a massive point in favor of her nomination.