May 2022 Church & State Magazine

Surviving The Inquisition: Ketanji Brown Jackson Withstands Inappropriate Questioning And Wins Seat On U.S. Supreme Court

  Rob Boston

Judge Ketanji Brown Jackson, President Joe Biden’s nominee to replace Justice Stephen G. Breyer on the U.S. Supreme Court, was doubtless prepared for many types of questions when she appeared before the Senate Judiciary Committee in late March.

It’s not unusual for nominees to be asked to explain their judicial philosophy, to discuss their backgrounds and life experiences and to offer thoughts on past rulings by the court. What is unusual is for a nominee to be asked how often she goes to church – yet that is exactly what happened to Jackson.

U.S. Sen. Lindsey Graham (R-S.C.) grilled Jackson on her religious beliefs March 22, asking her how often she attends religious services and even requesting that she rate her religiosity on a scale from 1-10.

Jackson, who is currently a federal judge on the U.S. Court of Appeals for the District of Columbia Circuit, told Graham she’s a Protestant, but she refused to go beyond that. She pointed out that that these are private matters and noted for good measure that Article VI of the Constitution bars religious tests for public office. She also committed to separate her personal religious views from how she would rule as a judge. Jackson said she is “mindful of the need for the public to have confidence in my ability to separate out my personal views.”

As Americans United noted on its “Wall of Separation” blog, Graham was undoubtedly trying to settle old scores with this line of questioning. Graham and other Republicans on the committee are still smarting over questions Justice Amy Coney Barrett was asked that touched on religion during her confirmation hearing.

But as AU pointed out, those questions were legitimate. The issue came up because Barrett, as a law professor, had signed a public statement attacking legal abortion and had taught law students at the Blackstone Fellowship, a legal clinic sponsored by Alliance Defending Freedom (ADF). ADF is a Christian nationalist legal group, and the Blackstone website used to boast that its goal was to “recover the robust Christendomic theology of the 3rd, 4th and 5th centuries.” This led some people to conclude, with justification, that Barrett might have difficulty separating her religious views from her rulings, and she was asked about that during her Supreme Court nomination hearings.

“Unlike Barrett, Jackson has no record of making public statements that indicate she wants to fuse religion and government, nor did she teach classes on behalf of an organization that has the stated goal of tearing down the church-state wall,” observed AU on its “Wall of Separation” blog. “Grilling the nominee on her religious beliefs might help people like Graham and his allies score cheap political points, but it sheds no useful light on the type of justice Jackson might turn out to be.”

Other senators also quizzed Jackson on issues that touch on church-state separation. U.S. Sen. John Ken­nedy (R-La.) asked Jackson whether she had a personal belief about when life begins. Jackson answered, “I have a religious belief that I set aside when I am ruling on cases.”

Asked by U.S. Sen. Jon Ossoff (D-Ga.) about the meaning of religious freedom, Jackson replied, “As you mentioned, free exercise of religion and the Establishment Clause, which prevents [the] state, the government, from preferring [one] religion over another is foundational. It is the principle that many people originally came to this country when it was founded in order to support. It was people who fled from religious persecution and wanted to found a country where everyone could believe what they wanted to believe and not have the government encroach on, hinge on, burden that right, And so it is a core foundational right. It is in the First Amendment.”

U.S. Sen. John Cornyn (R-Texas) criticized the high court’s ruling in 2015’s Obergefell v. Hodges, which had the effect of legalizing marriage equality in all 50 states. Cornyn argued that the decision conflicts with some Americans’ religious beliefs and asked Jackson to comment.

“That is the nature of a right,” Jackson replied. “When there is a right, it means that there are limitations on regulation, even if people are regulating pursuant to their sincerely held religious beliefs.”

Samantha Sokol, Americans Uni­ted’s federal policy advocate, was especially pleased by this response.

“Jackson’s answer demonstrates the Do No Harm principle that is central to religious freedom: While religious freedom protects everyone’s right to practice their religion – or no religion – it does not permit us to harm other people or take away their rights,” Sokol observed on the “Wall of Separation” blog. “We were heartened to see Jackson defend the right to marriage against efforts to misuse religious freedom to allow discrimination.”

Added Sokol, “In sum, Jackson proved a strong commitment to set her religious beliefs aside in her role as a judge, and a nuanced understanding of religious freedom. With a conservative Supreme Court majority set on chipping away at church-state separation and misusing religious freedom as a sword to harm others, we need a justice who will champion these principles. We hope that Jackson will become the defender of church-state separation on the court that we need and deserve.”

Although many Republican senators admitted that Jackson is qualified, most announced that they would vote against her anyway. U.S. Sen. Roy Blunt (R-Mo.), for example, told ABC News’ George Stephanopoulos April 3 that Jackson is “certainly qualified.” He praised her “great personality” and said the two had enjoyed a “great conversation.” He then said he would not support her confirmation.

The Hill newspaper in Washington, D.C. reported in early April that Senate Minority Leader Mitch McConnell (R-Ky.) put “public and private pressure on his Senate Republican colleagues to oppose President Biden’s nominee to the Supreme Court, despite the historic nature of her nomination to be the first Black woman on the court.”

Christian nationalist groups also piled on, lodging a smear campaign against Jackson. Tony Perkins, president of the Family Research Council, labeled Jackson “an extremist” in a column and called on Americans to vote for Republicans in the midterm elections so that future Biden appointees can be blocked.

A writer for the American Family Association called Jackson “an adherent of the far left” despite the lack of any evidence to support this charge, and mendaciously accused her of “a bizarre judicial sympathy for the users of child pornography.”

But in the end, these attacks and McConnell’s arm-twisting failed. McConnell could not even persuade every GOP senator to oppose Jackson. U.S. Sen. Susan Collins of Maine was the first Republican to announce that she would support the nominee, and Sens. Lisa Murkowski of Alaska and Mitt Romney of Utah soon followed suit.

Their votes, along with the support of every Democrat in the Senate, secured Jackon’s seat on the high court. On April 7, the Senate voted 53-47 to confirm her. Jackson will take that seat after Breyer steps down at the end of the current term, which will likely wrap up by the end of June.

Following the Senate vote, Americans United President and CEO Rachel Laser hailed the historic appointment of the nation’s first Black woman Supreme Court justice.

“As the first Black woman to serve on the U.S. Supreme Court in our nation’s history, Justice Jackson will help ensure that the Court better reflects America and includes perspectives that have long been ignored,” Laser said.

She added, “Justice Jackson’s judicial record on church-state separation law is not extensive but her answers during the confirmation hearings were reassuring. She promised not to impose her personal religious beliefs on others through the law, and she recognized the key role both the Free Exercise and Establishment clauses play in protecting religious freedom for all of us.”

Concluded Laser, “We look to Justice Jackson to be a bulwark against the Court’s ultra-conservative majority, who seem set on redefining religious freedom as a sword to harm others instead of a shield to protect all of us. We deserve a justice who will defend our country’s foundational principle of separation of religion and government like our democracy depends on it – because it does.”      ­­­

Congress needs to hear from you!

Urge your legislators to co-sponsor the Do No Harm Act today.

The Do No Harm Act will help ensure that our laws are a shield to protect religious freedom and not used as a sword to harm others by undermining civil rights laws and denying access to health care.

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