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Examining 2 days of Senate confirmation hearings for Biden's Supreme Court nominee

STEVE INSKEEP, HOST:

Now, as Judge Jackson prepares for another day of testimony, we want to explore how successful she's been so far in answering the questions from her first marathon session on Capitol Hill. Tomiko Brown-Nagin is a legal expert and dean of the Harvard Radcliffe Institute. She joins us now. Welcome.

TOMIKO BROWN-NAGIN: Hi, Steve. Nice to be on the show.

INSKEEP: How did you think Judge Jackson did?

BROWN-NAGIN: I thought she did remarkably well under really tough questioning. She was composed. She showed that she knows the relevant doctrines and handled herself, I thought, very well.

INSKEEP: I am interested in Susan Davis's report. She was asked about Roe v. Wade. She was asked about the Casey ruling. And she's made a point of answering the same way that a couple of conservative justices have answered, that this is the settled law of the country. There were other occasions in the hearing yesterday, when she did have an opportunity to speak, when she said things that sounded like things a conservative justice could say or a conservative judge could say - for example, that I am here to interpret the law. I'm not here to make new law. Did she establish, in your mind, a judicial philosophy, where she stands in relation to other judges or justices?

BROWN-NAGIN: Well, she shied away from embracing the terminology philosophy, and I understood her to instead want to focus on methodology. And the reason, she said, is because having spent most of her time as a judge, as a district court judge, she has not review the kinds of cases that require a philosophy in the way that legal scholars and others describe, the kind of arguments that Supreme Court justices engage in. What she has said repeatedly is that her methodology requires her to look at text, at original intent. In fact, she embraced the idea that Scalia's view on originalism has captured everyone's imagination, that we're all originalists now. She talked about precedent, and she said that she follows judicial restraint as opposed to judicial activism, which is really what all these questions are about, whether she is an activist.

INSKEEP: Well, now that's the difference - right? - between philosophy and methodology, I suppose. If you said you're following a philosophy, you're following your own ideas. By saying methodology, she's saying this is a duty. This is a job. I'm going to read the words on the page and tell you what they mean. Is that right?

BROWN-NAGIN: That's very right. The interesting thing is that although she did repeatedly emphasize that she is independent, that she favors restraint, that she hews to precedent, it seemed as if some of the senators did not credit what she was saying repeatedly. And that really went to the reality that these senators are speaking to the American people, to their constituencies. They're trying to draw contrast, even if the nominee is not really giving a basis for doing so - because she's not disagreeing with their perspective in many instances. And so there's a lot of politics, of course, surrounding the nomination, the hearing process.

INSKEEP: As you likely noticed, a number of the senators acknowledged the historic nature of this hearing. No one who looks like Judge Jackson has ever sat in that particular chair in a hearing like that. How much of a factor has that been, do you think, in this confirmation?

BROWN-NAGIN: I would say it's been a factor in two ways. First, the positive dimension is that it is a big, historic moment that is to be celebrated because her presence in that room validates equal workplace opportunity at the U.S. Supreme Court, and it has been a long time coming. At the same time, I did notice Judge Jackson was asked quite a few questions about race and about crime that I hadn't noticed other nominees asked. And so it does seem as if there are some dynamics there that are - see the senators playing to their constituencies and, you know, asking questions about contemporary culture war issues that weren't exactly relevant to the question of whether Judge Jackson has the disposition and the knowledge to do a job of the Supreme Court justice.

INSKEEP: Tomiko Brown-Nagin is dean of the Harvard Radcliffe Institute and professor of constitutional law at Harvard. Thanks so much for your insights.

BROWN-NAGIN: You're welcome. Transcript provided by NPR, Copyright NPR.