ShareShe brings extensive litigation experience at every level of the federal court system, including distinguished service as a federal public defender. As a district court judge, she ruled on over 550 cases and is renowned for her careful, methodical approach to ensuring equal justice under the law on reproductive rights, disability rights and workers’ rights.
Frankly, this is a nomination that should unite the country. Diversity strengthens the integrity of the institution to the broader public and, in particular, the many Black women who face many of the harshest injustices of our system today. It’s critical for the US Supreme Court to understand the impact of its rulings in the real world, and it can’t do that until it reflects the country it governs. Jackson will move us closer to a more fair and just system for women, for Black Americans and for everyone on the side of equality before the law.
It is incumbent upon US senators to give her a fair and timely confirmation without obstruction, honoring their constitutional duty to advise and consent – and their moral duty to treat her with the respect and dignity she deserves.
First things first: it’s about time. It’s long past time. For the first time in the history of the US Supreme Court, a Black woman has been nominated as a Justice.
And, to be clear, you will not find a more qualified nominee than Judge (likely soon-to-be Justice) Kentaji Brown Jackson. She graduated from Harvard, both undergrad and law school. She clerked for a federal district court judge and then, in a nice bit of symmetry, nabbed a mega-prestigious clerkship with Justice Stephen Breyer, who she now stands to replace.
She worked in private practice and for the US Sentencing Commission before she became a federal district court judge in 2013. Last year, she was nominated as a federal appellate judge, winning confirmation with 53 votes, including three Republicans. I have seen her in action on the bench, and I came away exceptionally impressed. In the case I covered, she was prepared, sharp, incisive and fair.
Senate Republicans can act one of two ways in the wake of Jackson’s nomination. They can dig in and oppose it, but they don’t have much of substance to work with – and they’ll likely lose anyway, given the current Democratic Senate majority (which will presumably be coupled with the votes of three Republicans who supported her federal appellate judgeship).
Or Republicans can pick their battles and throw their support behind Jackson, given her qualifications and the seeming inevitably of her confirmation. Maybe it seems quaint – Breyer himself was confirmed by an 87 to 9 vote back in 1994, which now seems impossible – but it also could be smart politics.
Elie Honig is a CNN senior legal analyst and former federal and state prosecutor, and author of “Hatchet Man: How Bill Barr Broke the Prosecutor’s Code and Corrupted the Justice Department.”
n selecting Judge Ketanji Brown Jackson to fill Stephen Breyer’s seat on the Supreme Court, President Joe Biden has fulfilled his campaign pledge to nominate the first female African American justice.
Biden selected Jackson for additional reasons, of course. Jackson has impressive credentials, and Biden likely feels confident that Jackson will implement the results-oriented, make-it-up-as-you-go-along “living constitutionalism” that progressives espouse.
Biden has already demonstrated that differences in judicial philosophy justify efforts to oppose the confirmation of the first female African American justice. Back in 2005, he even threatened to filibuster President George W. Bush’s possible nomination of DC Circuit judge Janice Rogers Brown to the Supreme Court.
The left is likely to make accusations of racism and sexism in response to any concerns expressed over Jackson’s vision of the judicial role. But if Senate Republicans assess Jackson on the basis of judicial philosophy, and don’t succumb to political pressure because of her race and sex, they will responsibly fulfill their constitutional duty to advise and consent.
The Democrats have control of the Senate, albeit slim control, so Jackson will almost certainly be confirmed. The process will probably be rather quiet. But Senate Republicans should use the opportunity to emphasize that judging is a craft that is distinct from policymaking. They can reinforce the message that the duty of a Supreme Court justice is to discern and apply the meaning that constitutional and statutory provisions bore when they were adopted, not to rewrite those provisions to advance an ideological agenda.
Ed Whelan holds the Antonin Scalia Chair in Constitutional Studies at the Ethics and Public Policy Center. A former law clerk to Justice Scalia, he is co-editor of “The Essential Scalia: On the Constitution, the Courts, and the Rule of Law” and of two other volumes of Scalia’s work.
or me, the power of seeing a Black woman nominated to the highest court in the land is without equal. But what is also extraordinary is that she will be a former federal public defender – a position she held for 2 1/2 years – in a country with a legal system still aspiring to be a justice system.
As a prosecutor, I wielded a tremendous amount of power in the exercise of my discretion to pursue (or decline to pursue) charges and autonomy in the way I met my burden of proof. But like the power held by a co-equal branch of government, the power of prosecutors must be checked – not to disrupt the pursuit of justice but to further it. In a country where race and bias are far too frequently elevated above fairness, public defenders are the welcome foil to balance the system.
The relationship between public defenders and prosecutors may be necessarily adversarial, but it is always symbiotic. Prosecutors get all the credit (and blame) for ensuring accountability, as if they alone believe in it.
The public may mistakenly view those who represent the accused as soft on crime. Indeed, if past is prologue, I expect such an absurd talking point to emerge during Jackson’s confirmation hearings. But public defenders are not soft on crime – they are hard on injustice, which is precisely where we as a society must be. And precisely where a Supreme Court justice ought to be.
I sincerely hope Jackson is afforded the dignity she ensured for the presumed innocent: due process, fairness, equal protection from an abuse of power and a meaningful opportunity to be heard. After all, it’s the US Supreme Court.
One thing that’s always said when there’s a US Supreme Court nomination is that presidents are often surprised by how their choices turn out. Presidents think the future justice will vote one way, and they wind up voting another way.
Don’t believe it. Especially in recent years, the art of picking Supreme Court justices has been refined to a science. All nine of the current justices largely vote in ways that would please the presidents who nominated them. That’s likely to be true if Judge Ketanji Brown Jackson is confirmed as well.
The myth of the surprised president dates principally from the presidency of Dwight Eisenhower, who nominated Earl Warren and William Brennan to the Supreme Court and found, to his dismay, that they were both powerful and outspoken liberals.
Here’s one thing to know about the Eisenhower administration: it was a long time ago. In those days, the court was not the public political battleground that it has become, and Eisenhower’s choices were motivated more by politics than ideology. (Eisenhower had promised the seat to Warren, then the governor of California, and he chose Brennan to appeal to Catholic voters on the eve of his 1956 reelection.)
It’s true that President George H.W. Bush’s appointment of David Souter in 1990 ranks as a modest surprise, but his behavior as a moderate on the court was consistent with both his own earlier record as a judge and Bush’s overall approach to social issues. Also, 1990 was a long time ago.
In recent years, though, as the court has become the focus of fights on such issues as abortion, guns and affirmative action, ideology has become the main criteria for selections. Presidents (as well as their advisers and supporters) care a great deal about the possibility of ideological mistakes. So they don’t make them. President Joe Biden wanted a judicial liberal, and that’s what he will get with Jackson. She will not surprise him, or us.
