A NATURAL GORSUCH ALLY:

[T]here are a couple of cases likely to receive a fair amount of attention at her confirmation hearing.

The first is Jackson's lengthy opinion in Committee on the Judiciary v. McGahn, a case where she ruled against the Trump administration's attempt to stonewall a congressional investigation. In McGahn, Jackson rejected the Trump administration's claim that "a President's senior-level aides have absolute testimonial immunity" from a congressional subpoena, after a House committee subpoenaed former Trump White House counsel Don McGahn.

Jackson's opinion in McGahn may be best known for one of its most widely quoted lines: "Presidents are not kings," Jackson wrote, and "they do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control." But the actual holding of her opinion was quite narrow. Though Jackson concluded that senior presidential aides must appear before a congressional committee that subpoenas them, she also held that "the specific information that high-level presidential aides may be asked to provide in the context of such questioning can be withheld from the committee on the basis of a valid privilege."

Thus, such a senior aide must physically appear before the committee, but the actual substance of their testimony may be quite thin if the committee probes matters that are protected by executive privilege.

Unfortunately, the case descended into a partisan food fight on appeal. A three-judge panel of the DC Circuit initially determined that Jackson lacked jurisdiction to hear the case, with two Republican judges rejecting Jackson's approach and one Democratic judge in dissent. That decision was repudiated by the full DC Circuit, in a decision that also broke down along party lines. The full court then sent the case back to the same three-judge panel to resolve two lingering questions not addressed by the full court -- and the panel once again voted along party lines to dismiss the case.

Eventually, after Biden took office, McGahn agreed to testify in 2021.

In December 2021, Jackson also joined a unanimous DC Circuit decision holding that Trump cannot prevent the House investigation into the January 6 attack on Congress from obtaining certain records from the Trump White House. That decision, in Trump v. Thompson, was upheld by the Supreme Court.

Biden's decision to name Jackson to the Supreme Court will surprise no one who pays attention to the judiciary. Obama interviewed Jackson for the cursed Supreme Court nomination that eventually went to then-Judge Merrick Garland in 2016 -- a rare honor for a judge who, at the time, only served on a trial court. Jackson was also the first Biden nominee confirmed to any court.

Both the Obama and the Biden White Houses, in other words, sent loud signals that Jackson was a serious contender for the top Court.

So, when Jackson appeared before the Senate Judiciary Committee last April, Republican senators must have known that this hearing was one of their few chances to rough up a potential Supreme Court nominee before a vacancy even opened on the Supreme Court. Yet, the Judiciary Committee's Republicans did not present a coherent narrative against Jackson at her last confirmation hearing, and many of them didn't even seem to try.

Tweet   @brothersjudd