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?
Read the rest of this post →