While legal experts are quick to note that recent Supreme Court nominees have doggedly avoided answering thorny legal questions or exposing their thinking on hot-button issues during confirmation hearings, they want to know Judge Jackson's thoughts on term limits for justices, cameras in the courts, recusals, the role of precedent, and everything in between.
Her answers could shed light on her legal philosophy and how she intends to uphold the promise of equal justice under the law for all Americans.
Here, legal buffs tell Law360 what questions they would ask Judge Jackson and why. Answers have been lightly edited for clarity.
Cedric Merlin Powell
Professor at the University of Louisville's Louis D. Brandeis School of Law
"I would ask her a question about stare decisis: What is her theory and practice when reviewing precedent and determining whether a decision should be overruled? Why is adherence to precedent so important?This is a way at getting at major issues like abortion and affirmative action without asking how she would rule, which would be an improper question that she would refuse to answer."
Brian Leiter
Professor of jurisprudence and the director of the Center for Law, Philosophy and Human Values at the University of Chicago Law School
"President Joe Biden expects you to be a liberal counterweight to the six conservative justices. How will you try to persuade your conservative colleagues to see things in your more liberal way?The U.S. Supreme Court grants cert to only about 1% of the cases it is asked to consider; unsurprisingly, these are overwhelmingly cases where the law is uncertain. As everyone in the White House and Senate knows — although they are loath to admit it in public — this means the Supreme Court is a kind of 'super-legislature,' albeit with limited jurisdiction, that must make moral and political judgments to fill in the gaps in the existing law."
Margaret M. Russell
Associate professor of law at Santa Clara University School of Law
"Justice Oliver Wendell Holmes famously said, 'The life of the law has not been logic. It has been experience.' Do you agree, and if so, what experiences have most powerfully affected your approach to the law?By using a well-known quote from an admired justice from a century ago, I am trying to ask the nominee to express in her own words what approach she will bring to the very human act of judging."
Rory K. Little
Professor at University of California, Hastings College of the Law
"If I were a senator, I'd ask something like, 'Judge Jackson, where do you get the calm and patience to put up with this shameless grandstanding event with such grace and a smile, and how can I get some of that magic potion?I guess that tells you something about my perspective on this particular confirmation process, if not every confirmation: We get virtually no useful information, but every [senator] gets a little bit of free national TV time to 'pitch' their voters/constituents."
Eric J. Segall
Professor at Georgia State University College of Law
"As a law professor, Justice Elena Kagan called these hearings a 'charade' and complained that they have very little substance. Yet, neither Justice Kagan nor any other recent nominee has provided real answers to hard questions.I won't ask you for any promises or commitments, as that would be inappropriate. But if I ask you for your current tentative views on important and timely questions, will you make this a charade or will you give real answers?"
Paul Collins
Professor of legal studies and political science at the University of Massachusetts Amherst
"Would you be willing to pledge to serve no more than 18 years on the court, hopefully starting a tradition of self-imposed, 18-year term limits for Supreme Court justices?There has been a great deal of attention to reforming the Supreme Court in the past few years. One of the proposals that has a good deal of support among policymakers, academics and the public is to term limit Supreme Court justices. Unfortunately, it does not look like Congress is going to act on this reform either by statute or constitutional amendment. However, members of the court can voluntarily term limit themselves."
Charles Geyh
Professor of law at Indiana University, Bloomington's Maurer School of Law
"I'd ask her how she goes about deciding an issue where the law is indeterminate — where both parties have comparably plausible arguments that the law favors their position.The point of the question is to explore how she approaches issues at stake in half the court's docket, where the simple answer, 'I follow the facts and law,' isn't responsive. And it affords her an opportunity to explain, for the benefit of the Senate and public, how judges exercise judgment with recourse to tools more sophisticated than imposing her ideological preferences."
Stephen Gillers
Professor at New York University School of Law
"A lower court judge who recuses [themselves] will be replaced by a colleague. In the Supreme Court, no one can replace a recused justice. How will this difference affect your recusal decisions, if at all? ... Do you think there should be a code of conduct for the justices, and, if so, should Congress write it if the justices won't?The Code of Conduct for U.S. judges governs lower federal court judges, but not the justices. The nine justices are the only judicial officers in the nation not governed by ethics rules."
Doron M. Kalir
Clinical professor of law at Cleveland-Marshall College of Law
"Do you support cameras in the Supreme Court chamber during oral argument? If so, why? Could you persuade your fellow justices to change their minds on this issue? How so?This is one of the rare questions that the Senate would really like to know about, and [to which] the nominee may provide a meaningful answer. Traditionally, the justices have rejected the notion that they should open their hearings to cameras, but more and more state Supreme Courts do so, and several justices have started to voice their opinion in that regard. It would be interesting to see how the newest justice views this issue, and why."
--Editing by Alanna Weissman and Alyssa Miller.
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