(March 23) As the Senate hearings on the Supreme Court nomination of Judge Ketanji Brown Jackson unfold, we should find increasingly troubling Jackson’s tendency toward rank sophistry.

While it is indeed a judge’s job to parse words carefully, there’s a difference between humbly parsing words to figure out their meaning and willfully doing so to manipulate their meaning beyond ordinary limits. Jackson has done the latter, sometimes so far beyond plausibility as to go past faulty discernment into the realm of bad faith.

For one minor example, she claimed that a controversial essay she wrote in law school about public registries for sex offenders was merely analytical and descriptive, without advocacy. Well, I read the entirety of the paper, and while it is largely presented as a purely analytical discussion, her analysis leaves absolutely no doubt that she concludes many aspects of the registries are unconstitutional. When, under questioning from Texas Republican Sen. Ted Cruz, she claimed otherwise, she was splitting hairs already so thin that they couldn’t be further split.

She similarly dodged and over-parsed questions from Missouri Republican Sen. Josh Hawley about a case in which she imposed only a three-month sentence on a child pornography convict when sentencing guidelines suggested at least a 97-month sentence. On her judicial philosophy and even on how to define a woman, conservative former federal prosecutor Andrew McCarthy writes, “Jackson bobs and weaves,” even when “it is inconceivable that she doesn’t have an answer.”

To my mind, though, the most egregious sophistry came when Cruz caught her in an apparent contradiction about whether she subscribes to, or makes use of, the “all whites are racist” outlook known as critical race theory.

“I’ve never used it, and it doesn’t come up in the work that I do as judge,” she said at first.

To which Cruz cited a speech she gave at the University of Chicago in which she said, “Sentencing is just plain interesting … because it melds together myriad types of law — criminal law, of course … constitutional law, critical race theory …”

That’s where she drew what was, in the context of criminal sentencing, a nakedly sophistic distinction without a difference…. [The full column is at this link.]


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