Picking Judge Jackson
Terry H. Schwadron
Feb. 26, 2022
Joe Biden’s choice of federal Court of Appeals Judge Ketanji Brown Jackson as his nominee to the Supreme Court matches his announced intentions — an experienced judge and one-time public defender with nuanced, liberal-leaning decisions who happens to be a Black woman.
That same combination of factors is driving vocal opposition among Senate Republicans who must confirm the nomination and prompting celebration among advocates for more diversity on the Supreme Court.
Unless there is some unexpected information to learn, we should be applauding, for a variety of reasons that will add a different point of view to the nine-member court.
The issue of the day, naturally, is getting through the Senate.
In that regard, Biden’s nomination of Jackson seems shrewd: She already has twice won confirmation, including last year when three Republicans joined Democrats in elevating her from the federal district court to the U.S. Court of Appeals for the District of Columbia.
While Sen. Lindsey O. Graham (R-S.C.) may have preferred the choice of South Carolina judge, J. Michelle Childs, there is no non-political reason for him to now change his mind about her qualifications. Nor should Senators Susan Collins of Maine or Lisa Murkowski of Alaska, who also voted for her previous confirmations. Biden needs all 50 Democrats, including Sen. Ben Ray Lujan (D-N.M.) who is recovering from a stroke.
She is nominated to replace Justice Stephen G. Breyer in a move that cannot change the conservative lean of the top court, but don’t expect that fact to dissuade Republicans from hitting out at her about race and perceptions of “activist” liberal justice — code for decisions they oppose. Strap in for the likes of Republican Senators Ted Cruz of Texas, Josh Hawley of Missouri and John Neely Kennedy of Louisiana to seek to score political points, including personal swipes, as they position themselves to run for president.
The Record
The argument that Biden somehow was pursuing some form of affirmative action in committing to selection of a Black woman is ludicrous, as even a cursory look at her record shows.
She is a graduate of Harvard College and Harvard Law School, a former clerk for Breyer, and worked as a public defender — an unusual stint for a Supreme Court candidate. She replaced Merrick Garland on the Court of Appeals when Garland became attorney general. She has experience in private practice, too, and was appointed to be the vice chair of the U.S. Sentencing Commission in 2010.
A very nice profile on her personal journey is here.
As a public defender, she represented poor clients, winning many sentence reductions. Her work as a defender drew tough-on-crime questions in the previous confirmation hearings, to which Judge Jackson offered written answers that said her work made prosecutors prove their cases more completely and effectively.
Funny, you have never heard a senator ask a nominee whether representing corporate clients have biased their judicial attitudes towards a range of topics from economics to workplace behavior to white-collar crime.
In eight months on the federal appeals court, there are not a lot of decisions, but she does have earlier rulings as a district judge hearing actual trials, not just intellectual arguments. Among her decisions were those to block the Trump Administration from speeding deportations, blocking a halt to grants for teen pregnancy prevention and blocking attempts to protect the former White House counsel Don McGahn from testifying before Congress about investigations of ties between Russian operatives and the Trump campaign. “Presidents are not kings,” she noted in her decision.
Her judicial writing is described as detailed and through, if long, and she is seen as lively and assertive from the bench. She had been a high school oratory champion.
Her family includes an uncle who was a Miami police chief and a brother who was a police detective, as well as one uncle jailed for a cocaine conviction commuted by former president Barack Obama. As it happens, she is related by marriage to former Speaker Paul Ryan, a Republican. A mother of two, she knits when she is stressed — as during the periods of the earlier confirmation votes.
The Politics
Senate Minority Leader Mitch McConnell, who opposed her confirmation last year, has vowed to keep hearings more civil than happened with the nomination of Justice Bret Kavanaugh, whose contentious confirmation hearings bogged down over years-old allegations of sexual assault.
Still, Cruz has led a charge that Biden’s promise to name a Black woman amounted to racial discrimination. “What the president said is that only African American women are eligible for this slot, that 94% of Americans are ineligible,” Cruz said. “The way Biden ought to do it is to say, ‘I’m going to look for the best justice,’ interview a lot of people, and if he happens to nominate a justice who was an African American woman, then great.”
That, of course, is what we have here. It would have been so with either of the other two finalists, as well. And it has become a noticeable pattern among Senate Republicans to challenge women nominees of color advanced by the Biden administration.
We expect to hear a broader line of attack on her “liberal” views. McConnell noted that she has written only two deciding opinions in the Court of Appeals and had some of her trial decisions overturned. “I also understand Judge Jackson was the favored choice of far-left dark-money groups that have spent years attacking the legitimacy and structure of the Court itself,” McConnell said, as an example.
Jackson has repeatedly told senators that “I know very well what my obligations are, what my duties are, not to rule with partisan advantage in mind, not to tailor or craft my decisions to try to gain influence or do anything of the sort. It doesn’t make a difference whether or not the argument is coming from a death row inmate or the president of the United States,” she said. “I’m not injecting my personal views.”
If confirmed, she would be the first Black woman judge among 116 justices named to the Supreme Court, the third African American and the fourth woman.
Bring it on.
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