Dershowitz: SCOTUS nominee Jackson should have been better prepared

Legal scholar says Judge Ketanji Brown Jackson should have known she would be asked about fetal viability and what defines a woman.

Published: March 24, 2022 8:45pm

Updated: March 24, 2022 11:47pm

Attorney and longtime Harvard legal scholar Alan Dershowitz says he is concerned about Supreme Court nominee Ketanji Brown Jackson's record on free speech and said she should have been better prepared for senators' questions on abortion and gender.

Dershowitz told "Just the News, Not Noise" on Thursday that he interacted with Jackson one time, when she led protests against offensive flags in 1991 as part of Harvard's Black Students Association.

One student, whose Virginia ancestors were against slavery but part of the Confederacy, displayed a Confederate flag outside of her dorm window. In response, another woman displayed a Nazi flag to show how offensive the Confederate flag was, Dershowitz recalled. 

"​​The Black Students Association of which Judge Jackson was then a member tried to get both flags taken down," the attorney told cohosts John Solomon and Amanda Head. Dershowitz disagreed with the student who displayed the flag, but he still defended her and ultimately won the case.

Dershowitz said Congress should have asked Jackson about her views on the incident and free speech.

"I hope that she's changed her views on that in the last 31 years and understands that some of the greatest threats to freedom of speech come from claims of equality on the other side or inequality on the other side," he said. "I hope she will understand that you can't have equality without having complete freedom of speech in the First Amendment."

During her Senate Judiciary hearings this week, Jackson stumbled on questions about abortion and what defines a woman.

"She wasn't as well prepared, for example, as the previous nominee Amy Coney Barrett, who knew her cases cold," the legal scholar said.

Sen. Marsha Blackburn (R-Tenn.) asked Jackson, "Can you provide a definition of the word 'woman'?"

"No, I can't," the nominee responded. "I can't in this context. I'm not a biologist."

Sen. John Cornyn (R-Texas) asked Jackson about fetal viability, and she gave a similar answer to her response to Blackburn.

"Senator, I am not a biologist," she said. "I haven't studied this. I don't know." 

Dershowitz said he believes Jackson should have known that she would be asked these questions.

He said Jackson should have told Blackburn: "'I'm a woman. And people who were born with vaginas are women. But there are cases now where people change and transition. And so the definition of what is a woman, for legal purposes, is a little bit more fluid than it was when we were all growing up.'"

He said, "That would have been a perfectly appropriate answer."

The question as to when life begins is "perfectly appropriate," he said. To that, Dershowitz said, she could have responded: "'It's a biological question. It's a legal question. It's a philosophical [question. It's a religious question. And when the case comes before me, I'll do all the research and make a decision based on the context of the case.'"

Republicans asked "inappropriate questions" about her decisions as vice chair of the U.S. Sentencing Commission, the Harvard professor emeritus said. 

"Supreme Court Justices don't sentence, and they almost never get cases about sentencing," he argued. "Those were gotchas: 'Oh, you're soft on children. You don't protect children.' Those were kind of questions designed not so much for her but for the Republican base."

Senate Democrats have been accused of "hiding" records from her time on the commission, and Senate Majority Whip Dick Durbin (D-Ill.) admitted this week during the hearing that his party received some of Jackson's judicial records hours before Republicans.

"She's not going to get a case that basically says should child pornographers be sentenced more harshly or less harshly, because those decisions are made by Congress and by the Sentencing Commission," Dershowitz said.

"I don't think she expected to be asked about her sentencing that came out," he added.

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