Nominating a justice to the Supreme Court can feel a lot like picking a ruler, as appointments last a lifetime, and someone’s word becomes law. Literally.
The only restraint on individuals is their willingness to be guided first and foremost by the U.S. Constitution. But that’s not what President Joe Biden was looking for when he chose Judge Ketanji Brown Jackson for a seat on the Supreme Court. Searching for a judge with "a living constitution" perspective, Biden wanted someone who leaned toward creative writing rather than Constitutional loyalty, which should trouble U.S. Senators when they question the nominee on Monday.
Judge Ketanji Brown Jackson has a Constitutional problem, which should concern everyone who cares about the kind of power a judge can seize with the stroke of a pen.
Case in point: On the issue of abortion, Judge Ketanji Brown Jackson helped defend what isn’t in the Constitution -- barbaric late-term partial birth abortion. And she ignored what is in the Constitution -- free speech rights for pro-life Americans.
For a pro-life, student-oriented group like mine, Judge Jackson’s record on free speech strikes at the heart of our business model, in which students choose to engage on behalf of the human rights issue of the day. Their speech, their choice, right?
Consider the case of a Texas high school where students voted who would lead a prayer – until the Supreme Court weighed in. In Santa Fe Independent School District v. Doe, Judge Jackson worked with now retiring Justice Stephen Breyer to oppose student-initiated prayer before high school football games, despite the fact that no one was forced to participate.
In a fierce dissent, Chief Justice William Rehnquist strongly opposed the "hostility to all things religious in public life," noting the justices who had crushed student prayer with a Constitutional argument were ignoring the record.
"Neither the holding nor the tone of the opinion is faithful to the meaning of the Establishment Clause, when it is recalled that George Washington himself, at the request of the very Congress which passed the Bill of Rights, proclaimed a day of ‘public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God,’" Rehnquist wrote in his dissent.
The Bill of Rights also permits peaceful assembly of pro-life Americans outside of abortion vendors that seemed to offend Judge Jackson.
In 2001, she worked as an attorney filing an amicus brief (friend of the court argument) in McGuire v. Reilly on behalf of strident abortion supporters like the Abortion Access Project of Massachusetts and NARAL Pro-Choice America who wanted a "buffer zone" around abortion vendors to prevent peaceful, pro-life speech.
At issue was whether one point of view – a pro-life message of love for both mother and preborn child – could be blocked. Speech in favor of abortion, or even in favor of getting a hamburger at any nearby restaurant, was acceptable, which is the heart of viewpoint discrimination. Fighting against this kind of discrimination has taken Students for Life to court often, including filing an amicus brief in another buffer zone case Price v. City of Chicago.
"Suffice it to say," Scalia said about a similar case, "that if protecting people from unwelcome communications (the governmental interest the Court posits) is a compelling state interest, the First Amendment is a dead letter."
While Judge Jackson seems able to overlook clearly stated free speech rights for all, she has shown no reluctance to justify the most radical of all abortion procedures, though "abortion" is never mentioned in our Constitution.
While clerking for Justice Breyer, Judge Brown helped defend barbaric Partial Birth Abortions in Stenberg v. Carhart. In that case, infamous abortionist LeRoy Carhart tried to hide behind the Constitution to block a Nebraska law banning the cruel death.
The New York Times described it well, "In the procedure, a fetus is partly extracted from the birth canal, feet first, and the brain is then suctioned out."
The public’s horror on learning about partial birth abortions, "performed far more often" than abortionists first wanted to admit, lead to a federal law banning it, which then Senator Joe Biden's supported. The Supreme Court allowed that ban to stand in Gonzales v. Carhart, the first time a specific method of death by abortion was halted.
Judge Jackson’s record on abortion turns the ideals of Lady Justice upside down.
The iconic, blindfolded statuette of Justice holding scales that she does not manipulate is supposed to represent a commitment to the rule of law without bias to those who come before her. But Biden’s pick for the Supreme Court shows blindness to the law itself, with a finger on the scale of her preferred petitioner. And for that reason, U.S. Senators should vote No on the nomination of Judge Ketanji Brown Jackson.