Committee Reports

Report on the Nomination of the Honorable Ketanji Brown Jackson to the Supreme Court of the United States

On January 27, 2022, Associate Justice Stephen G. Breyer announced his retirement from the Supreme Court of the United States, to be effective upon the confirmation of his replacement.  On February 25, 2022, President Biden nominated Judge Ketanji Brown Jackson of the United States Court of Appeals for the District of Columbia Circuit to become the 116th Associate Justice of the Supreme Court.

The New York City Bar Association, through its Board and Judiciary Committees, has evaluated Judge Jackson’s qualifications in accordance with its guidelines.  We reviewed and analyzed information from a variety of sources:  Judge Jackson’s written opinions from her service on the D.C. Circuit Court of Appeals and District Court; her speeches and articles; her prior confirmation testimony; comments received from the Association’s members and committees; press reports, blogs and commentaries; and interviews with her judicial colleagues and numerous practitioners.

We evaluated the extent to which Judge Jackson possesses the following qualifications as set forth in the Association’s Guidelines: (1) exceptional legal ability; (2) extensive experience and knowledge of the law; (3) outstanding intellectual and analytical talents; (4) maturity of judgment and common sense; (5) unquestionable integrity and independence; and (6) a temperament appropriate to be a Justice of the Supreme Court.

Our evaluation of the nominee in light of these criteria was based on extensive written materials, as well as numerous interviews that we conducted, including: published opinions written by Judge Jackson while sitting on the D.C. Circuit Court of Appeals and District Court; available articles, speeches, other publications, completed questionnaires and prior testimony submitted by Judge Jackson; various news articles and commentary with respect to the nomination; reference interviews with a host of judges and lawyers, including Judge Jackson’s colleagues from the D.C. Circuit Court of Appeals and District Court, attorneys who have appeared before Judge Jackson, and colleagues from Judge Jackson’s years on the U.S. Sentencing Commission and as an attorney in private practice; and emails and letters written by members of the New York City Bar in response to a notice to the entire membership soliciting comments on Judge Jackson’s nomination.[1]

The New York City Bar finds Judge Jackson to be Highly Qualified to be an Associate Justice of the Supreme Court of the United States.

The New York City Bar’s Ratings and Guidelines

The New York City Bar is among the oldest bar associations in the United States and, at present, consists of 23,000 members, many of whom are from other parts of the country.  The Association has been evaluating judicial candidates for 150 years in a non-partisan manner based on nominees’ competence and merit.  Although the Association had evaluated a number of Supreme Court candidates over the course of its history, in 1987, it determined to evaluate every candidate nominated to the Supreme Court.

In 2007, the New York City Bar’s Board of Directors, formerly known as the Executive Committee, moved from a two-tier evaluation system in which candidates were found to be either “qualified” or “not qualified”, to a three-tier evaluation system.  The ratings and the criteria that accompany them are as follows:

  • “Qualified.”  The nominee possesses the legal ability, experience, knowledge of the law, intellectual and analytical skills, maturity of judgment, common sense, sensitivity, honesty, integrity, independence, and temperament appropriate to be a Justice of the United States Supreme Court.  The nominee also respects precedent, the independence of the judiciary from the other branches of government, and individual rights and liberties.
  • “Highly Qualified.”  The nominee is qualified, to an exceptionally high degree, such that the nominee is likely to be an outstanding Justice of the United States Supreme Court.  This rating should be regarded as an exception, and not the norm, for United States Supreme Court nominees.
  • “Not Qualified.”  The nominee fails to meet one or more of the qualifications above.

Summary of Findings

Highlights of Judge Jackson’s Background

Judge Jackson’s background has been documented in greater detail elsewhere, including in her Senate Judicial Questionnaire submitted in connection with her nomination to the Court.  A brief biographical summary, drawn from online reports, is included here to provide the reader with context for the report.

Judge Jackson was born on September 14, 1970 in Washington, D.C.  She grew up principally in Miami, attending and excelling at Miami Palmetto Junior and Senior High School.  She competed in speech and debate competitions across the country, becoming a national champion, was elected president of her class, and was voted “most likely to succeed.”  She went on to attend Harvard College and graduated magna cum laude in 1992.  Her senior thesis was titled, The Hand of Oppression: Plea Bargaining Processes and the Coercion of Criminal Defendants. She worked for Time magazine for one year after college and interned at the Neighborhood Defender Service of Harlem.

In 1993, Judge Jackson enrolled in Harvard Law School, graduating cum laude in 1996 as an editor on the law review. Following law school, she clerked for Judge Patti Saris of the U.S. District Court for the District of Massachusetts, followed by Judge Bruce Selya of the U.S. Court of Appeals for the First Circuit.  She later clerked for Justice Stephen Breyer at the Supreme Court.

Between her last two clerkships, Judge Jackson worked as a litigation associate at Miller, Cassidy, Larroca & Lewin, L.L.P. and, after clerking, she joined Goodwin Procter as an associate representing clients in criminal and civil appellate matters, thereafter working as an associate at the firm now known as Feinberg Rozen.

In 2003, Judge Jackson became an assistant special counsel for the U.S. Sentencing Commission.  From 2005 to 2007, she was an assistant federal public defender in the District of Columbia, appointed to represent low-income criminal appellants in the D.C. Circuit. She then worked for three years at Morrison & Foerster LLP on civil and criminal appellate matters in state and federal court before returning, in 2010, to the Sentencing Commission after President Obama nominated her to be vice chair (she was confirmed by voice vote).

In 2012, Judge Jackson was nominated by President Obama to the U.S. District Court for the District of Columbia.  The Senate returned her nomination after failing to take action before Congress adjourned, but President Obama renominated her in 2013 and the Senate confirmed her by voice vote on March 23, 2013.  On April 19, 2021, President Biden nominated her to the U.S. Court of Appeals for the D.C. Circuit, for which she was confirmed on June 14, 2021 by a vote of 53 to 44, which included bipartisan support.

Outside of the court, Judge Jackson sits on Harvard University’s Board of Overseers and the University’s Executive Committee. She is an elected member of the American Law Institute and has served on its governing body, the ALI Council, since 2016. Her outside service also includes teaching classes on trial advocacy and federal sentencing at Harvard Law School and George Washington University Law School, and serving on the ABA Criminal Justice Section’s Sentencing Task Force and on the Judicial Conference’s Committee on Defender Services.

Judge Jackson married her fellow Harvard College alum, Patrick Graves Jackson, in 1996.  Patrick Jackson went on to become a surgeon.  They have two daughters, Talia and Leila, with whom they live in Washington, D.C. According to one report, after Justice Scalia’s passing, Jackson’s then-11-year-old daughter, Leila, wrote a letter to President Obama asking him to consider her mother for the Supreme Court. Leila’s handwritten note testified: “She is determined, honest and never breaks a promise to anyone, even if there are other things she’d rather do. She can demonstrate commitment and is loyal and never brags.” An additional interesting fact, observed when Judge Jackson was first nominated to the District Court, is that by marriage she became related to former House Speaker Paul Ryan. On her nomination to that court, Paul Ryan introduced Jackson to the Senate by saying, “Our politics may differ, but my praise for Ketanji’s intellect, for her character, for her integrity, is unequivocal.”

Finally, it bears noting several historic aspects of Judge Jackson’s nomination:  If confirmed, Judge Jackson would be the first Justice to have served as a federal public defender, and only the second Justice to have served on the U.S. Sentencing Commission.  As the Congressional Research Service additionally noted in a March 14, 2022 analysis of the nominee: “If confirmed, Judge Jackson would be the first Black woman, the third Black person overall, and the sixth woman overall, to serve on the Supreme Court.”

Analysis of Judge Jackson’s Opinions on the D.C. Circuit and District Court

We reviewed opinions authored by Judge Jackson in approximately 250 cases from her time on the U.S. District Court for the District of Columbia, and another four cases from her time on the Court of Appeals.

While the docket of the D.C. Circuit courts can be narrower than that of other circuits, the Jackson opinions reviewed covered a wide range of subjects — including commercial law, environmental law, business law, immigration law, real property law, employment law, criminal and civil rights law, and matters related to agency and administrative practice, jurisdiction, and constitutional law.  We conducted a detailed examination of each of these areas.  In order to provide a high-level summary of the New York City Bar’s findings, the following analysis of Judge Jackson’s opinions focuses on the Judge’s writing style, approach to opinion writing, knowledge of various areas of law, and her intellectual and other skills as reflected in the opinions.

Writing Style and General Approach

We concluded, based on the consistency observed in writing style across the vast number of opinions reviewed, that Judge Jackson writes her own opinions rather than having law clerks draft them — an especially impressive feat, given the wide array of cases before her and the volume of opinions she has published.  Judge Jackson’s opinions reflect a very thoughtful, detail-oriented jurist free from partiality or bias. Her opinions are clear, organized, well-written, and easy to follow. She avoids legal jargon and writes in accessible language even when confronting complex legal theories.

The format of Judge Jackson’s opinions is quite consistent regardless of the type of case before her.  Her opinions include a summary of the key issues to be decided, the background and procedural history of the litigation, as well as a thorough and detailed background of the statutes and federal regulations relevant to the case and issues before the Court.  She carefully examines the facts and applies applicable precedent to the matter before her.  The opinions are divided into sections with sub-headings that are extremely helpful in navigating the longer, more complex decisions.

Judge Jackson was willing to overturn her own prior ruling in a given case if the facts change as the case proceeds.  See, e.g., Otay Mesa Prop., L.P. v. U.S. Dept. of the Interior, 344 F. Supp. 3d 355 (D.D.C. 2018) (changing position on significance of distinction between “occupied” and “unoccupied” areas based on new evidence presented in discovery).  We also observed that Judge Jackson wrote a number of brief but explanatory opinions in cases involving pro se litigants.  See, e.g., Wall v. TSA, 2012 WL 6502226 (D.C. Cir. 2021) (per curiam order); Tefera v. Wells Fargo Bank, 19 F. Supp. 3d 215 (D.D.C. 2014); and Williams v. Verizon D.C., 304 F. Supp. 3d 183 (D.D.C. 2018).

Judge Jackson’s opinions uniformly reflected an objective, neutral adjudication of the disputes at issue, and all were well-crafted and effective opinions.

Knowledge of the Law and Accessibility of Analysis

Judge Jackson’s opinions reflect her command of a host of subject areas and tools of legal reasoning to deploy clear, persuasive, and accessible reasoning. The following are just a sampling of opinions that capture her powerful knowledge of the law and the rigor of her legal reasoning:

  • I.A. v. Garland, 2022 WL 696456 (D.C. Cir. 2022) (Jackson, J., concurring) (underscoring inappropriateness of vacating lower court order as moot after issued).
  • Wye Oak Technology, Inc. v. Republic of Iraq, 24 F.4th 686 (D.C. Cir. 2022) (writing for the Court, reversing the District Court’s application of an exception to sovereign immunity under the Foreign Sovereign Immunities Act for “commercial activity carried on in the United States by the foreign state,” reasoning that the exception requires the foreign government to perform the activity in the United States).
  • AFGE-AFL-CIO v. FLRA, 25 F.4th 1 (D.C. Circ. 2022) (finding arbitrary and capricious, in violation of the APA, FLRA’s decision to adopt substantial-impact standard instead of its previous de minimis standard for when certain federal employers are required to engage in collective bargaining with their employees’ representatives).
  • Sierra Club v. U.S. Army Corps. of Engineers, 64 F. Supp. 3d 128 (D.D.C. 2014) (federal agencies have no jurisdiction to conduct environmental impact review over private company constructing domestic oil pipeline on privately owned lands).
  • Federal Forest Resource Coalition v. Vilsack, 100 F. Supp. 3d 21 (D.D.C 2015) (detailed analysis concerning standing to challenge government action, where plaintiffs argued that new planning promulgated pursuant to the NFMA exceeds the Federal Forest Service’s statutory authority).
  • Rothe Development, Inc. v. Dept. of Defense, 107 F. Supp. 3d (D.D.C. 2015) (addressing constitutionality of applying race-conscious remedial measures to a disadvantaged group).
  • Cognitive Professional Svcs., Inc. v. U.S. Small Business Admin., 254 F. Supp. 3d 22 (D.D.C. 2017) (analyzing under Chevron SBA actions concerning standards for an applicant to qualify for benefits).
  • Fontaine v. Bank of America, 43 F. Supp. 3d. 1(D.D.C. 2014) (finding Rooker-Feldman doctrine precludes consideration of plaintiff’s claim because California state courts had already issued decisions concerning the mortgage in a foreclosure action).
  • Kiakombua v. Wolf, in his capacity as Acting Secretary of the Department of Homeland Security, 498 F. Supp. 3d 1 (D.D.C. 2020) (hot-button issue of process by which DHS adopted its manual pursuant to which agents were required to make credible fear determinations, in particular DHS’ compliance with the APA).
  • U.S. v. Young, 330 F. Supp. 3d 424 (D.D.C. 2018) (dissecting provisions of Title 21, section 853(a) of the US Code, in considering government’s request for a money judgment in a post-conviction criminal forfeiture claim).
  • California Clinical Laboratory Association v. Secretary of Health Human Services, 104 F. Supp. 3d 66 (D.D.C. 2015) (analyzing Medicare Act to determine whether it gave plaintiffs a substantive right or entitlement that automatically gives rise to Article III standing, and whether plaintiffs were entitled to mandamus relief).
  • Z Street, Inc. v. Kokshinen, 44 F. Supp. 3d 48 (D.D.C. 2014) (denying government’s motion to dismiss allegations that it was constitutional for the IRS to apply an extra review standard to Israel advocacy groups seeking nonprofit status).
  • Pierce v. District of Columbia, 128 F. Supp. 3d 250 (D.D.C. 2015) (enforcing rights of prisoners under the ADA).

Role of the Courts

Across opinions addressing a wide range of subject matters, we found that Judge Jackson is ever mindful of the role of the other branches in determining the appropriate scope of judicial review.  Her opinions take into account the relevant historical landscape when a statute was enacted, Congress’ likely intentions at the time, how any amendments reflect Congress’ intent, and how that affects the judiciary’s obligations.  See, e.g., Alliance of Artists and Recording Companies, Inc. v. General Motors Company, 306 F. Supp. 3d 422 (D.D.C. 2018) (discussing the basics of the Audio Home Recording Act and why it was initially enacted).

A case that illustrates her judicial philosophy, especially of higher courts that review lower court decisions, is I.A. v. Garland, 2022 WL 696459 (D.C. Cir. Feb 24, 2022) (concurring opinion).  The DOJ tried to vacate a district court ruling against the DOJ simply because it had become moot after issuance.  Underscoring the basis for the per curiam order denying the DOJ’s request for vacatur, Judge Jackson wrote: “the dispute-and-decision bell cannot be unrung — there was a dispute and someone was declared the winner. Written opinions are the most accurate historical record of what the supervising court thought of those events. And in a common law system of case-by-case adjudication, that history need not, and should not, be cavalierly discarded.”

Across the opinions reviewed, we did not observe the judge’s decisions or analysis to reveal any systematic bias in favor of the government or defendants in criminal matters, nor any bias in favor of plaintiffs or defendants in civil matters. Rather, the judge approached the role of the courts as the neutral arbiter of justice.

She is also mindful in matters involving agency discretion when considering questions of regulatory authority.  See, e.g., Crawford v. Johnson, 166 F. Supp. 3d (D.D.C. 2016) (dismissing plaintiff’s Title VII claims against Dept. of Homeland Security because he failed to exhaust his administrative remedies under EEO).  However, she is willing to reverse an agency determination where it is warranted.  See, e.g., Otay Mesa Prop., L.P. v. U.S. States Dept. of Interior, 344 F. Supp. 3d. 355 (D.D.C. 2018) (vacating the critical habitat designation pending further rulemaking on remand because the FWS’ designation of the owners’ property was inconsistent with the ESA and, therefore, arbitration and capricious under the APA).

Finally, Judge Jackson is comfortable interpreting statutes in high-profile cases where the executive branch may be involved, and she does so with appropriate restraint, temperament, and analytic rigor.  For example, she faced significant scrutiny in ruling on the actions of the DHS during the Trump Administration.  Kiakombua v. Wolf, in his capacity as Acting Secretary of the Department of Homeland Security, 498 F. Supp. 3d 1 (D.D.C. 2020). See, also, e.g., AFCSME v. Trump, 318 F. Supp. 3d 370 (D.D.C. 2018).

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In sum, we were impressed by Judge Jackson’s intellectual strength, care and persuasiveness in opinion writing, and objectivity in adjudication.  Her opinions embody judicial clarity, comprehensiveness, and restraint.

Review of Judge Jackson’s Speeches

Judge Jackson’s speaking roles range from presiding over Naturalization and attorney admission ceremonies, to giving commencement and other keynote speeches, to serving as guest lecturer or judge for moot court competitions. Topics addressed in her speeches range from the role of the court and judges, to federal sentencing proceedings and the criminal justice system, to empowering women of color, diversity, mentoring and teaching legal skills, and career/work-life balance.

Based on our review of those available, we concluded that Judge Jackson’s speeches reflect her deep commitment to the law, as well as an eloquent presentation style and a courteous, considerate temperament, all of which are desirable in a Supreme Court Justice.  The topics she has chosen to address reflect a careful, thoughtful, and measured approach. In one notable address, Judge Jackson reflected on the life and legacy of Justice Ginsburg in overcoming personal and professional obstacles. She also spoke about the “role of dissent” in judicial decision-making, calling for respect and courtesy for different perspectives where she said “reasonable minds differ.”

Review of Judge Jackson’s Articles

We reviewed Judge Jackson’s published writing on a wide array of topics.  Her written work product is cogent, clean, and well-researched, reflecting great attention to detail and thoughtful consideration of the legal, moral, policy, and practical issues that she addressed.  The tenor of her writing was found to be reasoned, respectful, and courteous — while unafraid to voice her opinions and to speak her mind.  As detailed in Appendix D, Judge Jackson’s 2019 review of When Should Law Forgive?, a book by Harvard Law School professor and former Dean Martha Minow, is illustrative.  Judge Jackson’s in-depth paper on the promulgation of the organizational sentencing guidelines in 1991 is another example of her comprehensive and well-researched work demonstrating careful attention to detail. We further found that Judge Jackson’s early writing demonstrated pragmatic reasoning and thoughtful insights on complicated issues at the intersection of policy, constitutional, statutory, and decisional law.

In sum, we found Judge Jackson’s written record to reflect a thoughtful, persuasive, careful, and temperate jurist, supported by strong research on an array of subjects.

City Bar Member Comments

The New York City Bar invited comments from its 23,000 members concerning the nomination of Judge Jackson, which we received and reviewed. The comments were entirely favorable, emphasizing Judge Jackson’s professionalism, intellect, credentials, and experience, as well as the diversity of perspectives that she might contribute to the Court, in particular as a former criminal defense lawyer. No comments raised any cause for concern.

Review of Judge Jackson’s Senate Judicial Questionnaire

The Senate Judiciary Committee Questionnaire mainly seeks background information on the nominee.  Judge Jackson identified her employment record: private sector experience at Kirkland & Ellis LLP, Miller, Cassidy, Larroca & Lewin, L.L.P., Ropes & Gray LLP, Goodwin Procter LLP, The Feinberg Group, LLP, and Morrison & Foerster, LLP; law clerkships for Judge Patti B. Saris on the U.S. District Court for the District of Massachusetts, Judge Bruce Selya on the U.S. Court of Appeals for the First Circuit, and Justice Stephen Breyer on the Supreme Court; and government service on the United States Sentencing Commission, the United States District Court of the District of Columbia, and the United States Court of Appeals for the District of Columbia.  She listed her education, bar association memberships, court admissions, and published writings.  The questionnaire stated that 75% of Judge Jackson’s cases on the District Court were jury trials, 25% bench trials; and the split between civil and criminal proceedings was 50%-50%.

The questionnaire also asked about Judge Jackson’s income and assets, and potential conflicts of interests that could arise because of those assets.  Judge Jackson explained that she would “resolve any conflict of interest by looking to the Code of Conduct for United States Judge” “and other relevant prescriptions,” as well as seek guidance from judicial ethics officials.

Highlights of Interviews

We interviewed more than two dozen individuals, including judges from the United States Court of Appeals and District Court for the District of Columbia Circuit and practitioners who have appeared before the nominee.  In short, we found that the overwhelming majority of Judge Jackson’s judicial and non-judicial colleagues view her as highly qualified to serve on the Supreme Court.

Across interviews with judges and lawyers who either appeared before the nominee or previously worked with her in private practice, the references almost unanimously agreed that her writing skills are exceptional, that she is able to synthesize and convey complex legal issues with ease, and that she possesses the ideal judicial temperament. They further noted that her thorough preparation and respectful manner of communicating with others will enhance her ability to build consensus.  Even those who do not necessarily agree with all of her rulings do not dispute her fairness or the precision, insight, and desire to adhere to precedent that animates Judge Jackson’s work.

All of Judge Jackson’s judicial colleagues with whom we spoke had only positive assessments of the nominee and agreed that she is well qualified to sit on the Supreme Court. Judges appointed by both parties characterized Judge Jackson as objective, unbiased, fair, and humble, observing that she never appeared to reach conclusions based on a predetermined bias on any issue. They reported that Judge Jackson had no preset judicial philosophy, and one went so far as to discredit the notion that she is a “radical left wing” judge. Several also spoke of her impressive intellect, as well as her diligent and thorough preparation.

One judge emphasized that Judge Jackson does all of her own writing and does not merely ‘rubber stamp’ draft opinions prepared by her law clerks. All reported that Judge Jackson is a pleasure to work with and respectful of everyone in the courthouse.  Some noted that she is beloved by the janitorial and security staff.  Her colleagues lauded her ability to disagree in a professional manner without alienating those with a different view.  Some even offered character anecdotes about the nominee. One judge, for example, told of Judge Jackson’s “giving personality” in offering helpful guidance after her nomination to the District Court.

In the private sector, too, Judge Jackson was “highly regarded” by her colleagues for her good judgment, sophistication, and superior writing skills.  One former supervisor in private practice described her work as “very strong” and “exceptional.” Another colleague, who worked closely with the nominee at a law firm, praised her “great writing skills,” her “intellectual firepower,” her keen ability to distill complex concepts into understandable terms, and her judicial temperament.  Similar assessments of Judge Jackson were expressed as to her public sector service, from colleagues the Federal Public Defender and the Sentencing Commission.

Interviews with nearly a dozen practitioners who have appeared before the nominee revealed that most strongly supported her nomination, with one veteran attorney praising her “judicial demeanor and style” as “needed in the Supreme Court because she cares, and she listens to people,” and several applauding her “practical and balanced approach,” professional competence, integrity, and judicial temperament.  She is not reported to have evinced any systematic predilection as a judge in favor of one side or the other, whether in criminal or civil cases.  Three practitioner references did express a concern about the nominee’s approach to cases.  But after further examination, the New York City Bar concluded that these opinions are outliers without any record or other evidence for support, and in no way did they detract from the otherwise uniform assessment of the nominee’s exceptional qualifications for the Supreme Court.

We reviewed a letter from a wide range of law clerks that was sent to the Senate Judiciary Committee.  We also attempted to reach law clerks directly but only two were responsive and both, in short, were uniformly positive.  One former law praised Judge Jackson as a “remarkable judge” and “an even more extraordinary person” for teaching her “above all, that anything less than precision and perfect in matters of justice is simply unacceptable.”  This former law clerk noted that the judge is “patient with nuance, undaunted by ambiguity, and methodical with complexity, all in pursuit of what is true and what is right. This doggedness is a brand of excellence….that has shaped — and will continue to shape — her legacy on the federal judiciary.”  And the former law clerk underscored the nominee’s humility in approaching her office and its impact on people’s lives, noting that “perhaps most indicative of the Judge’s dignity and grace is that she writes her opinions for the people of the country at large….a pedagogical approach with her writing to enable anyone and everyone to understand the where, when, what, how, and why of every case.”  Another former law clerk rated Judge Jackson’s bench style as “prepared,” and recounted that she enjoyed talking through issues and interrogating both sides on their arguments. The judge would draft her opinions, and hold hearings and review every line of the opinion with the assigned clerk, amending it to make sure she was saying precisely what she wanted to say in the way she wanted to say it. The former law clerk confirmed that Judge Jackson is “a great combination of businesslike and warm,” noting that she works diligently but also knows how to make her chambers feel pleasant, and expressed confidence that Judge Jackson would bring a fresh perspective to the courtroom and will have a significant impact on the Justices’ discussions regardless of whether her vote is in the majority.

The New York City Bar’s Assessment of the Nominee and Conclusions

Based on the work performed as set forth above, and considering the New York City Bar’s guidelines and rating system, the New York City Bar concludes that Judge Jackson is Highly Qualified to serve as an Associate Justice of the Supreme Court of the United States.


[1] To ensure that our ultimate findings would be available to the public prior to the Senate Judiciary Committee’s vote, we completed the substance of our review before the Senate Judiciary Committee commenced hearings on the nomination.  Accordingly, our assessment is based on the record that existed before the nominee’s participation in the Senate Judiciary Committee hearings and does not attempt to address subjects raised by the Committee or testimony provided by the nominee after that time.