The effects, and role of technology in Supreme Court confirmation hearing of Ketanji Brown Jackson

Since 1916, Supreme Court confirmation hearings have been open to the public at large. As the medium of television became more mainstream, broadcasting the confirmation hearings was used as a means of making them available to an even wider audience.  From as early as Justice Ruth Bader Ginsburgs’, and Justice Thurgood Marshalls’ hearings, gender and race have played a role in how hearings have been conducted on the televised stage[1]. These two concepts converged center stage in the recent nomination of Justice Ketanji Brown Jackson.

Ensuring transparency is a worthwhile goal in the pursuit of achieving greater civic engagement. However, there is a downside to such publicity, particularly with the proliferation of social media and user generated content. In many instances the event has become an opportunity for political showboating and, to use Justice Thomas’s words, “…a Circus.”  These events have become so much of a spectacle that some commentators have even suggested the elimination of televised coverage of Supreme court confirmation hearings altogether.[2]

As was the case with Justice Marshall fifty-five years ago, many questions posed by lawmakers during Justice Jackson’s hearing, strayed from judicial matters and delved into arcane matters. This included questions ranging from her opinion of Critical Race Theory, to whether she (in reference to Senator Cruz’s interpretation of a recent children’s picture-board book) believed that “babies can be racist?”

Technology also played a role in the hearing process which was entirely unrelated to the effects that it had on the process.  Some senators posed legitimate questions concerning technology itself. Senators Richard Blumenthal (D-Conn), Sen Jon Ossoff (D-GA), and Senator Mike Lee (R-Utah) were among the senators who asked questions which related to emerging technologies and her take on their impact and application to the legal world.

Back in February, U.S. Senators Richard Blumenthal (D-CT), Marsha Blackburn (R-TN), and Senator Ossoff (D-GA) introduced the Kids Online Safety Act. The Purpose of the act was to empower youth, and address the children who are in the midst of a mental health crisis. Blumenthal asked whether it’s helpful to the courts if the Congress updates existing laws to account for technological change.

Senator Jon Ossoff asked how the candidate would approach cases involving “technologically complex questions” such as expectation of privacy and the usage of geolocation data from cellphone carriers. Senator Mike Lee (R-Utah) asked Jackson about section 230 which was a decades old liability shield. This shield protects digital service providers from lawsuits for hosting and moderating user contributed content. The Senator asked whether law makers would have the power to make protections contingent on technology platforms that operate as a “public forum that is not discriminating on the basis of viewpoint”

As technology evolves it will play an increasing role, not just in how citizens view and shape the judicial process, but also in how justices respond to jurisprudence involving emerging technologies.

[1]   Waxman, O. B. (2018, September 6). time.com. Retrieved from Supreme Court Confirmation Hearings Weren’t Always Such a Spectacle. There’s a Reason That Changed: https://time.com/5382104/brett-kavanaugh-supreme-court-confirmation-hearing-history/

[2] Farullo, J. (2022, March 27). Eliminate Television Coverage of Supreme Court Confirmation Hearings. Retrieved from MSN.com: https://www.msn.com/en-us/news.politics/eliminate-television-coverage-from-supreme-court=confirmation-hearings/ar-AAVynIP