Tom Jipping, a senior legal fellow in Heritage’s Meese Center for Legal and Judicial Studies, discusses key takeaways from Judge Ketanji Brown Jackson’s nomination hearing.

Michelle Cordero: From The Heritage Foundation, I'm Michelle Cordero and this is Heritage Explains. President Joe Biden has nominated U.S. Circuit Court Judge Ketanji Brown Jackson to replace retiring Supreme Court Justice, Steven Breyer. Jackson was a favorite among left wing special interest groups as well as an early front runner for the seat. At 51, she's just a year older than Justice Antonin Scalia was at the time of his 1986 appointment. He served for nearly 30 years. Jackson's confirmation hearings began last week.

>>> What the Confirmation Hearing Told Us About Judge Jackson’s Judicial Philosophy

News Clip: Heated debate today in the Senate confirmation hearing for Ketanji Brown Jackson.

News Clip: She could make history as the first black woman to sit on the Supreme court but first she's taking questions from senators in a process that is becoming increasingly contentious.

Marsha Blackburn: Can you provide a definition for the word woman?

Ketanji Brown Jackson: Can I provide a definition? No.

Blackburn: Yeah.

Jackson: I can't.

Blackburn: You can't?

Jackson: Not in this context. I'm not a biologist.

Jackson: You can be doing this for 15 minutes and all of a sudden you are looking at 30, 40, 50 years in prison.

Lindsay Graham: Good. Good.

Jackson: I understand Senator but-

Graham: Absolutely good. I hope you are [crosstalk 00:01:31].

Jackson: ... required to do-

Dick Durbin: Allow her to finish, please.

Graham:I hope you go to jail for 50 years. If you're on the internet trolling for images of children and sexual exploitation. So you don't think that's a bad thing. I think that's a horrible thing.

Durbin: That's not what the witness said, and she should be allowed to answer this question once and for all.

Cordero: So what questions were asked of Jackson and how did her answers shed light on what kind of judge she would be? Today, Thomas Jipping explains. Chipping spent 15 years on the staff of Senator Orrin Hatch, including several at his chief council on the Senate Judiciary Committee. He's developed a national reputation among both liberals and conservatives as a true expert in the federal judiciary. Our conversation right after this short break.

>>> Check out SCOTUS 101, a Heritage Foundation podcast.

Cordero: Tom Jipping, thank you so much for joining us.

Tom Jipping: Thanks for having me.

Cordero: Tom, what would you say are the most important things to know about Ketanji Brown Jackson?

Jipping: Well, the two categories of things that are important to know about a Supreme court nominee, I think are her legal experience and her judicial philosophy. That is, what does her resume look like and what does she believe her job is, going ahead if she joins the Supreme Court. As to her resume, she has really good academic credentials from Harvard, and she's been in private practice with four different significant law firms over the course of about eight years. She was a federal public defender for two years. That's something which is not a typical credential for Supreme Court nominees, at least in recent years. And President Obama appointed her in 2013 to the U.S. District Court here in the District of Columbia. That was after she served for a few years also on the sentencing commission. I'm sure we'll talk about sentencing related to her judicial record.

Jipping: And then last year, President Biden appointed her to the U.S. Court of Appeals. I think that parallels a little bit Justice Sonya Sotomayor, who is also on the District Court Of appeals and then appointed to the Supreme court. I think it's a distinguished, hefty record of legal experience, different kinds of legal experience where she's really excelled, I think, in each part of it.

Cordero: So when it comes to SCOTUS nominees, there always seems to be drama. Has there been any big controversy around her nomination?

Jipping: Yeah, I think a couple of them. Obviously that began with President Biden's promise two years ago, to appoint only a black woman to the Supreme Court. He made that promise during a debate during the presidential campaign. That secured South Carolina Congressman James Clyburn's endorsement, which in turn got Biden, South Carolina, which you know ... So that was a little bit smarmy, I thought. But now that she's been nominated and I think she was the front runner to be considered, there were a few others, but I think she was always the most serious contender, two categories of issues, I think that have come up during the hearing.

>>> A Look at Ketanji Brown Jackson’s Most Noteworthy Judicial Decisions

Jipping: One is her judicial philosophy. A year ago she told the judiciary committee, she didn't have one. And this week she's gone into quite a bit of detail about point one, point two, point three and here's my methodology, and this is the way I'll approach interpreting the constitution. Which raises the question when did she discover that judicial philosophy? So there's that category. There's been a lot of probing of that.

Jipping: And the second category is more particular to issues. There's the issue of her pattern of sentencing in child pornography cases. There's the issue of Critical Race Theory and whether she is associated with that. I think in issues like that, what senators really want to know is not specifically what her personal views are, but whether her personal views will really drive her judging. That's really what judicial philosophy is all about. A judge is supposed to decide cases impartially, which requires, as best as a human being can, to get personal views out of the way. So those issues are important, but they're important for that purpose and those have been pretty contentious this week. Some Republican senators have gotten into some pretty sharp exchanges with her about them.

Cordero: And wouldn't you say that those two issues and her judicial philosophy and then these issue based things, one leads into the other.

Jipping: They do. Yeah, they aren't separate. They're very much connected and they contribute to the picture of what kind of justice is she going to be? The founders of our country designed the judiciary one way and that requires a modest judicial role. It requires interpreting the constitution a particular way and a certain approach to judging. And the other is much more political, much more activist, much more aggressive. Which kind is she going to be? And that's where these different issues, they provide some clues for that and that's what I think people are trying to figure out.

Cordero: What about some of these groups that have been supporting Jackson? Does that matter at all in the grand scheme of things?

Jipping: I would say two things. One is, Democrats certainly believe it when a Republican nominee comes along. How many times didn't we hear that the Federalist Society and the Heritage Foundation painted a nominee with some kind of a broad brush. But certainly with Judge Jackson, there was a long list, not just of liberal groups, but of far left groups. The most liberal groups that are active on any of these issues that not only support her, but some of them actually recommended her. That's got to say something.

Cordero: Yeah, that's a little scary.

Jipping: Well, in those groups, shortly after the election in 2020, 70 of those groups signed a statement, being very explicit, to the Biden administration about the kind of judges that they expected. They actually said in the statement that the administration's priorities are at stake, meaning we want a judiciary that's going to further the administration's political priorities. They were very explicit about that. And so the fact that they so enthusiastically, so early, as I say, not only support, but recommended her, I think it's fair to say that they know what they were looking for and they know whether they found it.

Jipping: Same is true with the Biden administration. Joe Biden, since the time he's chaired the Judiciary Committee in the 1980s, he's been clear about the kind of judges that he will or won't support. He was one of only 22 senators, for example, to vote against John Roberts. Roberts is not considered an originalist champion and Biden couldn't even support him. So there too, I think the administration knows what it wants and I think it knows how to find them. So I think it's fair to say that Judge Jackson most likely is exactly what the Biden administration and their left wing allies think her to be.

Cordero: So that being said you've been very fair throughout this interview so far, what type of judge do you think she would be? You've been doing this for a long time. And like I said, you've had a fair assessment. If you were a Senator, what would do?

Jipping: Well, the other thing that happened this week was that suddenly out of the gate, for someone who said she didn't have a judicial philosophy, she was using words like, "original public meaning" and "originalist." And saying, "I'm very acutely aware of the limits on my power." I attended Antonin Scalia's confirmation hearing in 1986 and I kept thinking, "Gosh, she sounds like him." And this went on throughout the hearing, obviously she was coached, obviously she chose ways of phrasing things that might resonate with conservatives. But the question is, can we believe it? And what we were talking about just a minute ago, those left wing groups would never support a Republican nominee who said exactly what Judge Jackson said this week. Joe Biden has long opposed Republican nominees who embraced the same judicial philosophy that Judge Jackson endorsed this week.

>>> SCOTUS 101: Who is Ketanji Brown Jackson?

Jipping: So I think there are good reasons to doubt that the spin that we heard this week was an accurate preview of the kind of justice that she's going to be. And frankly, if I were a Senator, I know which side I would err on. I would have to be convinced that a Supreme Court nominee was going to be the kind of justice consistent with how the founders designed the judiciary in their judicial philosophy and their approach to judging. And I haven't seen or heard what convinces me of that with her, despite I think what we heard during the hearing.

Cordero: All right. So what is the likelihood of her appointment then? What's the split look like?

Jipping: Well, I think from the beginning, people have the expectation that she will be confirmed. There are only three Republicans who voted for her last year for the Court of Appeals, Lindsey Graham, Susan Collins, and Lisa Murkowski. Even if all three of those, and they Certainly don't have to support her for the Supreme court simply because they voted for her for a different court, that's actually something that Joe Biden told Clarence Thomas back in 1990 when he was appointed to the U.S. Court of Appeals, the same court that judge Jackson is serving on now. And Biden said, "Just because I'm supporting you for the Court of Appeals, doesn't mean I would support you for the Supreme Court in the future." So it's those three. Tho those are the three Republicans that are question marks, perhaps. Even if all three vote against her and it's a 50-50 split then Kamala Harris, the Vice President breaks the tie, which has never happened in history.

Cordero: Interesting.

Jipping: That would make Justice Jackson the most controversial appointment to the Supreme Court in American history. I wish President Biden had picked someone who was more mainstream, who more clearly in line with, I think, what people naturally expect from an impartial judiciary, but he didn't. So I think she will be confirmed. It'll probably take a couple weeks from now. A week or so after the committee reports the nomination to the full Senate. That's the average timeframe. And then-

Cordero: So if that's the timeline, my next question for you is what can we expect to happen this week?

Jipping: Well, the typical schedule for the hearing is what they followed this week, which is four days. And then the committee meets in what they call closed session, that's routine, just to discuss any issues that should not be made public regarding her background check or any other issues. So I think this week, the Judiciary Committee will meet, maybe even today and vote on the nomination. Then it goes to the full Senate.

Jipping: Now, if Lindsay Graham opposes the nomination in committee, then the vote might just be 11 to 11 because with a 50-50 Senate, the Judiciary Committee is split in half, if that's the case, then under some special rules that are enforced right now, the full Senate could vote to discharge the nomination from the committee and get it to the Senate floor that way. I think there certainly will be a cloture vote to end debate. That water's under the bridge and now it's just a simple majority.

Cordero: So how soon could we see a confirmation?

Jipping: I think by the end of, probably, next week.

Cordero: Wow.

Jipping: And then, the timing here is interesting because typically a justice, unless there's a death like with Justice Scalia, typically a justice waits till the end of the term, which is the end of June to announce their retirement. And they typically, at least in recent years will say, "I will serve until my successor is confirmed." And then the process plays out during the summer. That's the way we've seen it with Kavanaugh and with Gorsuch. And now, Justice Breyer announced quite early, or at least his private information to the White House was leaked by the White House to the public on that and Justice Breyer says, "I will retire at the end of the term." So by a date certain. So that's really the reason why it was reasonable-

Cordero: Interesting.

Jipping: ... to get the process done now. So that when the end of the term comes, a justice or a judge, even when they're confirmed does not actually take office until the President signs their commission and they take the oath of office. This way the process is finished. Breyer is done on that last day. The President can sign the commission and she can take her oath of office and have continuity.

Cordero: I'm thinking ahead. We've got some pretty big cases coming up this summer that Breyer will still be a part of. I have to wonder if those on the left could be bitter that he's still part of that.

Jipping: Well, I know that it's tempting to spin one way or another, or characterize a justice as good or bad or moderate or liberal or whatever for your own purposes. But Steven Breyer has been a reliable liberal activist justice since he was appointed in 1994. I mean, before he was appointed to the Court of Appeals in 1980, he was Ted Kennedy's Chief of Staff on the Judiciary Committee. I mean, this is not a conservative person by any definition. He's been a reliable ... and he's been quite a left wing justice in my view on some important issues. So he's a reliable vote on the liberal side for all of those issues in these upcoming cases, I'm sure. I assume that-

Cordero: I think it's good to clarify that, especially with the situation that we're in.

Jipping: Oh sure. Just like, Justice Barrett replaced Justice Ginsburg. That was a change in the balance or composition of the court. Justice Kavanaugh, replacing justice Kennedy, not so much. Justice Gorsuch replacing Justice Scalia, not really. And this won't be either. Judge Jackson clerked for Justice Breyer on the Supreme Court. I think they have a lot in common in terms of their approach to judging. Certainly actions speak louder than words, so 10, 20 years from now, we can do a podcast to take a look and see what the record was, but I suspect there really won't be much difference between how Justice Jackson votes on some of these really important issues and the way Justice Breyer did.

Cordero: Well, Tom, thank you so much for joining us to share your extensive knowledge on this subject. We've had you on more times than I would have thought on these type of nominations. They've come up more frequently.

Jipping: Well, they, they have. There's only one ... Here's a little bit of trivia. Only one President in American history who served a full term, did not appoint a Supreme Court Justice and that was Jimmy Carter. Senator Hatch once reflected on that and said, "I think that may be evidence that there is a God and he is smiling upon us." But you know, it does happen. It happens when justices decide to leave. I believe Justice Jackson will be the 116 justice that we've had and a whole bunch in recent years. So these are opportunities for the American people to learn about that branch of their government, the one that's kind of shrouded in a little bit of mystery. And then hopefully this will be useful. I know discussions like this are very helpful to our fellow citizens in that regard.

Cordero: Absolutely. Thank you so much, Tom.

Jipping: You're very welcome.

Cordero: That wraps up this week's episode of Heritage Explains. I'll post a link to Tom's latest op-ed on Jackson's judicial record in our show notes. If you enjoy Heritage Explains, it would mean the world to us if you could take a moment and leave a five star rating or comment, or even share our podcast with a friend. It really does make a difference. Thanks for listening and have a great week.

Heritage Explains is brought to you by more than half a million members of The Heritage Foundation. It is produced by Michelle Cordero and Tim Doescher with editing by John Popp.