GOP senators push Ketanji Brown Jackson on McGahn ruling

Senate Republicans pushed Judge Ketanji Brown Jackson, President Biden’s Supreme Court pick, on her ruling involving a former Trump aide and a House panel investigating then-President Trump. 

The written questions to Jackson, which were released along with her responses by the Senate Judiciary Committee Friday, comes after GOP senators sidestepped asking about the case, one of Jackson’s most well-known rulings, during the days-long committee hearing last month. 

In the case, Committee on the Judiciary vs. McGahn, Jackson ruled that former White House counsel Don McGahn had to comply with a subpoena from the House Judiciary Committee — which was investigating if Trump obstructed justice, a question that eventually got folded into an impeachment inquiry — writing in her decision that: “Presidents are not kings.” 

Both Jackson’s wording and her legal reasoning sparked written questions from several GOP senators on the committee. The questions about the McGahn case were part of hundreds of follow-up written questions GOP senators asked Jackson. 

Sen. Chuck Grassley (Iowa), the top Republican on the committee, appeared to take issue with Jackson’s phrasing of “presidents are not kings” and that “they do not have subjects, bound by loyalty or blood.”

“Did the Justice Department argue that the president of the United States enjoys the same status as a monarch, or that he has subjects who have sworn a blood oath to him?” Grassley wrote in his questions. 

Jackson responded saying that it was important that her decisions were written “in a way that the general public can understand.” 

“Clear writing is key to a transparent judiciary and public confidence in courts. I therefore have at times used imagery, allegories or metaphors to explain complicated legal arguments. This is consistent with the practices of many other judges and justices, including Justice Antonin Scalia,” Jackson added. 

Sen. Marsha Blackburn (R-Tenn.) also questioned Jackson’s phrasing asking if it is “improper for a judge to suggest that the Department of Justice was claiming monarchical powers through this kind of op-ed style rhetoric” and if it indicated Jackson’s personal views. 

Jackson said that she had never considered her personal views for a case and reiterated that she wanted her writing to be accessible to the public. 

“In my view, writing with such clarity ensures that the Judiciary remains transparent and approachable to all Americans and bolsters public confidence in the institution,” Jackson wrote. 

Beyond her style of writing, GOP senators also raised questions about the legal reasoning behind the decision itself. 

Sen. Mike Lee (R-Utah) argued that Jackson took an overly broad view of standing, which is used to determine if a person can bring a legal challenge, but, beyond that, that the case involved a disagreement between the executive and legislative branch making it a political question, and not a legal question for a court to decide. 

Jackson, however, said that she weighed if the case was a political question “and provided an explanation as to why the political question doctrine was not applicable despite the nature of the parties as political branches.” 

Sen. John Kennedy (R-La.) didn’t directly mention the case in his question. But Jackson brought it up in her response to the GOP senator asking about what, if any, presidential aides are entitled to absolute immunity from subpoenas. 

Sen. Josh Hawley (R-Mo.), a member of the committee viewed as having White House ambitions, asked if a reversal of the decision by the U.S. Court of Appeals for the D.C. Circuit impacted her “approach to jurisdictional analysis going forward.” 

A three-judge panel from the D.C. Circuit initially ruled 2-1 that the House panel lacked the authority to try to subpoena McGahn. But the court then set aside the ruling and agreed to rehear the case before the full circuit court. 

Jackson, in her response to Hawley, pointed back to the full court’s decision to rehear the case. 

“Thereafter the parties reached a settlement and filed a joint motion to dismiss the appeal and vacate the panel opinion, which was granted,” she wrote. “Under the current posture of the case, my trial court opinion remains good law.”