(March 21) [Written before the hearings began] Legitimate reasons exist to ask Supreme Court nominee Ketanji Brown Jackson probing questions about her jurisprudential philosophy. Those questions, however, should be sober and fair, not histrionic and overly accusatory.

The precise wording of the questions is important. They should be designed to elicit as much specificity as possible without suggesting a lack of respect for Jackson’s integrity or professional attainments, which by all accounts are formidable.

With those parameters in mind, here are some of the questions senators should ask.

On sexual offenses, including child pornography, against minors

1. While there seems to be widespread agreement in the legal community that official (but not mandatory) sentencing guidelines related to sex offenders do not allow enough leeway for particular circumstances of the individual offenses, the Sentencing Commission has said the error can go both ways. Yes, it advised that some circumstances should merit lesser penalties, but it also advised that current guidelines can result “in unduly lenient ranges for other offenders who engaged … in sexually dangerous behavior.” Yet in all of such cases on which you have ruled, you have departed from the guidelines only in favor of more leniency, never to apply more severe penalties. Why?….

On race and equal justice before the law

Many of us believe that both critical race theory and the 1619 Project are noxious morally and flat-out false factually. You are on record multiple times saying complimentary things about both of them or about their chief proponents. Even belief in critical race theory, though, is not necessarily a disqualifier for the Supreme Court unless the nominee wants to incorporate it into her judicial approach. Critical race theory, which holds that race is a primary determinant of human action, is an offshoot of critical legal studies, which basically asserts that “all law is politics” so that judges no less than legislators are making decisions as much political as legal.

1. With that in mind, how, if at all, do you believe judges should incorporate political and race-based considerations into their decision-making?…. [The full column is here.]


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