RBG, Writs and Recusals: A Guide to Viewing Court Appointments

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WASHINGTON (AP) — It’s become almost commonplace: A woman Supreme Court appointee is appearing before the Senate Judiciary Committee.

Four of the last seven high court candidates were women. But Judge Ketanji Brown Jackson is the first black woman to be nominated for a seat on the nation’s highest court.

The senators and Jackson will make opening statements when hearings begin Monday. She will face two days of questioning on Tuesday and Wednesday.

Americans just getting involved in the process should expect to see committee-controlling Democrats praising Jackson, 51, for his stellar resume and touting the historic nature of his nomination, fulfilling a campaign promise from the President Joe Biden.


It remains to be seen how the Republicans will handle the situation. Questions will certainly be raised about Jackson’s work as a defense attorney earlier in her career and Republican senators have repeatedly invoked Jackson’s support from progressive groups like GOP leader Mitch McConnell. of Kentucky, called “the most left-wing activists”.

Jackson’s confirmation would not alter the current 6-3 conservative majority on the Supreme Court, so there may be reason for Republicans to blunt their attacks.

Senators know the public is watching, but as the nomination hearing unfolds and lawmakers seek to probe the candidate’s views, they often slip into the use of legalese and refer to previous Supreme Court cases in shorthand. It may seem like they are speaking in code.

Expect senators to use these terms during Jackson’s hearing:

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FEDERAL PUBLIC DEFENDER

Jackson is the first Supreme Court nominee with experience as a federal public defender, a government employee responsible for representing indigent defendants. She spent around two years in the role earlier in her legal career.

During her confirmation hearing in federal appeals court in Washington, Sen. Ben Sasse, R-Neb., asked Jackson if she ever worried that her work “would result in more violent criminals – including armed criminals – brought back to the fore”. of the streets.” She replied that the government must ensure representation of the accused under the Constitution “in order to guarantee freedom and justice for all”.

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STARE DECISIS

Latin for “sticking to things decided”. It is the legal principle that judges use to base their decisions on previous decisions. When it comes to confirmation hearings, it often refers to abortion rights and is usually a way of asking if a candidate will overrule certain decisions such as Roe v. Wade.

Of course, the Supreme Court is already considering whether to get rid of Roe this term and could do so before Jackson takes his seat, if confirmed. Candidates invariably invoke stare decisis, or refer to something like established law, to try to reassure senators that they have great respect for Supreme Court precedents, without pledging to preserve any one in particular. However, respect for precedent has its limits. The justice has already agreed to review next term whether a major ruling regarding the use of race in college admissions should be overturned.

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AFFIRMATIVE ACTION

A term for efforts to improve opportunities for minorities, usually in employment and college admissions. It’s a standard topic for Supreme Court confirmation hearings, especially after a 2003 Supreme Court ruling that said affirmative action wouldn’t be necessary in 25 years. There are still a few years to go before that prediction, but the judges have agreed to take over cases from Harvard, where Jackson sits on the board, and the University of North Carolina. She will be asked if she plans to participate in the case.

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CHALLENGE

It is the formal term for a judge’s decision not to participate in a case, usually because the judge was involved in it at an earlier stage or has a financial or personal dispute. Republicans will pressure Jackson to pledge to back out of the college admissions case because of her role at Harvard, where she attended college and law school.

She may not commit to it, but the court has a potential solution to any conflict. The cases of the two schools are currently linked. The court could separate them, giving Jackson the chance to participate in the North Carolina case while staying out of the Harvard one. Something similar happened in 2020, when Judge Sonia Sotomayor uncovered conflict in a dispute between two states over presidential voters. The court gave up on hearing them together and finally issued its major decision in the case in which all the judges participated.

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HABEAS CORPUS

Sometimes abbreviated as “habeas” or called “Great Scripture”, it is Latin for “show me the body”. It is the constitutional right prohibiting unlawful and indefinite imprisonment. In Jackson’s case, lawmakers might use the term when discussing his work on behalf of Guantanamo Bay detainees.

She was assigned four such cases while working as a federal public defender between 2005 and 2007. At the time, the Supreme Court had recently ruled that Guantanamo detainees had the right to challenge their capture and release. detention by filing habeas petitions in federal court. Jackson did some of that work.

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BALLS AND STRIKES

OK, it’s not a legal term, but it will still appear. Chief Justice John Roberts compared judges to referees during his confirmation hearing in 2005, saying that neither makes the rules, but both enforce them. He said he would recall, if confirmed, that his job is to “call balls and strikes”. Lawmakers love to quiz candidates on this analogy.

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THE GINSBURG RULE

It’s also not a legal term, it’s shorthand for: I’m not going to answer that question.

His invocation was a helpful way to dodge controversial issues in the style of his namesake, the late Justice Ruth Bader Ginsburg. During his confirmation hearing in 1993, Ginsburg declined to answer questions about issues that might be before him as a judge. That would be inappropriate, she said, saying she could “offer no prediction, no indication” of how she would vote.

She wasn’t the first to dodge questions, but subsequent nominees have invoked Ginsburg’s words in response to a series of contentious questions. Ginsburg herself has said a lot more about some hotly debated issues, including abortion, than many candidates.

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