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Candice Norwood
Originally published by The 19th
President Joe Biden nominated Judge Ketanji Brown Jackson to the Supreme Court, a historic choice that could fundamentally change who helps to protect and interpret the Constitution and ensure equal justice under the law.
If confirmed, Jackson will be the first Black woman — and the first former federal public defender — on the nation’s highest court in its 232-year history. While she would not shift the Supreme Court’s ideological makeup, she brings a distinct life experience and professional background to the court that serves as the final arbiter of law. Of the 120 justices who have served in its history, 115 have been men, and 117 have been White.
Now, with Justice Stephen Breyer set to retire at the end of the court’s term in early summer, Jackson will have the opportunity to make history.
“I believe it’s time that we have a court that reflects the full talents and greatness of our nation with a nominee of extraordinary qualifications and that we inspire all young people to believe that they can one day serve their country at the highest level,” Biden said in his Friday announcement, flanked by Jackson and Vice President Kamala Harris, who also made history as the first Black and Asian American woman to hold that title. Jackson “steps up to fill Justice Breyer’s place on the court with a uniquely accomplished and wide-ranging background,” he continued.
Sen. Dick Durbin of Illinois, the Democratic chairman of the Senate Judiciary Committee that oversees judicial confirmation hearings, said the committee “will begin immediately to move forward on her nomination with the careful, fair, and professional approach she and America are entitled to.”
Jackson, 51, who has been a federal appellate court judge since June of last year, would be the second justice with a criminal defense background appointed to the nation’s highest court. Jackson has been a rumored favorite for a Supreme Court vacancy since Biden nominated her last year to the U.S. Court of Appeals for the D.C. Circuit, a court that has been a stepping stone for several Supreme Court justices. In 2016, she was on then-President Barack Obama’s shortlist to replace Justice Antonin Scalia after his death.
After Biden announced her Supreme Court nomination, Jackson gave brief remarks, thanking Biden, Harris, Breyer, her family and God, stating that “one can only come this far by faith.” She also drew a line between herself and Constance Baker Motley, the first Black woman to become a federal judge, with whom Jackson shares September 14 birthday.
“Today I proudly stand on Judge Motley’s shoulders, sharing not only her birthday, but also her steadfast and courageous commitment to equal justice under law,” Brown said at the White House. “Judge Motley’s life and career has been a true inspiration to me. “
The personal significance of that connection was evident as Jackson spoke. Legal scholars and supporters said they hope Jackson’s nomination can open more doors for people from a range of backgrounds to fill seats on the nation’s courts.
“With Judge Ketanji Brown Jackson’s nomination to the court, what we see is a potential justice with the matching credentials of justices who are currently sitting on the court, but she also brings a background that is far more diverse than many judges currently on the court,” said Michele Goodwin, a law professor with the University of California, Irvine, and an executive committee member of the ACLU. “Americans have yet to see a full and broad diverse representation of themselves by judges on the court.”
Jackson was born in Washington, D.C., and raised in Miami from the age of 3 by her parents, who were both public school teachers and graduates of historically Black colleges. In a 2017 speech at the University of Georgia School of Law, Jackson said her interest in the law started at an early age while watching her father study when he was attending law school.
She was a star debater at her public high school, an activity she said shaped her legal career. “That was an experience that I can say without hesitation, was the one activity that best prepared me for future success in law and in life,” Jackson said then. “I learned how to reason and how to write, and I gained the self-confidence that can sometimes be quite difficult for women and minorities to develop at an early age.”
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Jackson went on to receive her bachelor’s and law degrees from Harvard University. After school in 1999, she obtained a clerkship with Breyer, a prestigious opportunity that has long been out of reach for many women of color. One 1998 report published in USA Today analyzed racial backgrounds of the 394 law clerks hired by the sitting justices during their entire tenures. It determined that, at that point, less than 2 percent of the justices’ clerks had been Black, even fewer were Hispanic, about 5 percent were Asian and about 25 percent were women. An update written in 2018 found that since 2005 about 85 percent of all Supreme Court law clerks have been White.
In her remarks Friday, Jackson noted the impact of her clerkship with Breyer, who she said not only “gave me the greatest job that any young lawyer could ever hope to have, but he also exemplified every day in every way that a Supreme Court justice can perform at the highest level of skill and integrity, while also being guided by civility, grace, pragmatism and generosity of spirit.”
Jackson’s career after the clerkship included a number of positions both in private practice and in government. She worked as the assistant special counsel on the U.S. Sentencing Commission under then-President George W. Bush from 2003 until 2005. She later returned in 2010 to serve as vice-chair for the commission under Obama. During her tenure, the commission amended its guidelines for offenses related to crack cocaine in a move meant to address disparities in punishment for crack and powder cocaine offenses, a difference that had meant disproportionately harsh sentences for Black offenders.
“The Commission first identified the myriad problems with a mandatory minimum statute that penalizes crack cocaine offenders 100 times more severely than offenders who traffic in powder cocaine,” Jackson said in a 2011 Sentencing Commission meeting. “Today, there is no federal sentencing provision that is more closely identified with unwarranted disparity and perceived systemic unfairness than the 100-to-one crack-powder penalty distinction.”
This work on the commission, in addition to her time as an assistant federal public defender from 2005 until 2007, helped Jackson gain support from civil rights advocates and progressive groups. One group, Demand Justice which was created in 2018, listed Jackson on its own Supreme Court shortlist in 2020. Academics and advocates note the uniqueness of her public defender background in a world where justices tend to be former prosecutors or corporate lawyers.
“It’s incredibly important to have lawyers who have experience sitting at the table with real-life people and understanding their needs and defending their rights,” Christopher Kang, a co-founder of Demand Justice, previously told The 19th.
Jackson said in one of her confirmation hearings that she viewed the public defender role as an opportunity to help people in need and was struck by how little her clients understood the criminal legal process.
If Jackson is confirmed, she will not change the 6-3 conservative supermajority that currently exists. But the addition of her social and professional experiences can help inform the court’s decision making, said Angela C. Robinson, a retired Connecticut state judge and visiting associate professor of law with Quinnipiac University.
“When you bring different life experiences, you can add to the dialogue you can bring to the dialogue as a group itself, which is homogeneous, may not know,” Robinson said.
The only other Supreme Court justice in U.S. history with a criminal defense background was Thurgood Marshall, who became the nation’s first Black justice in 1967. Biden worked briefly as a public defender early in his career and has made a point to nominate more former public defenders to federal courts. Adding Jackson to the highest court could give her an opportunity to elevate realities that few other justices can speak on, Goodwin said.
“The United States leads the world in mass incarceration,” she said. “We know that there is well-documented disparate surveillance, policing and incarceration in the United States that affects the lives of Black and brown people. Having a justice who is able to counsel and advise and speak to fellow justices about such experiences is critically important.”
Jackson has stated that her work in public defense prompted her later on to communicate more clearly with defendants who appeared before her bench in federal district court. “I speak to them directly and not just to their lawyers,” Jackson said. “I use their names. I explain every stage of the proceeding because I want them to know what’s going on.”
Obama nominated Jackson for the district court position in D.C. in 2013, where she served for eight years before elevating to the D.C. appellate court last year. When answering a question during her last confirmation hearing about her judicial philosophy, Jackson said:
“I do not have a judicial philosophy per se, other than to apply the same method of thorough analysis to every case, regardless of the parties.”
She added, “Given the very different functions of a trial court judge and a Supreme Court justice, I am not able to draw an analogy between any particular justice’s judicial philosophy and the approach that I have employed.”
During her time as a district judge she ruled in several high-profile cases, including a number involving the Trump administration.
In 2015, Jackson ruled in favor of an incarcerated man named William Pierce, who is deaf and was serving a 51-day sentence for assault. She determined that prison employees and contractors in the District of Columbia had “merely assumed that lip-reading and exchanging written notes would suffice, and they largely ignored his repeated requests for an interpreter to assist him in interacting with other people.”
She ruled against then-President Donald Trump in a 2019 case in which immigrant advocacy groups challenged his administration’s rule that expanded categories of noncitizens subject to “expedited removal” from the country. That same year, she also ruled against the Trump administration’s attempts to stop then-White House counsel Don McGahn from testifying as part of Congress’ impeachment inquiry, writing that “presidents are not kings.” The Trump administration appealed the ruling, but McGahn made a deal to testify before the court made a decision.
On the federal circuit court, Jackson has had a much shorter tenure, but she sat on a three-judge panel that rejected Trump’s request for the court to block the National Archives from turning over documents related to the January 6, 2021, breach of the U.S. Capitol over to a special House committee investigating the attack. That decision was upheld by the Supreme Court in January.
Over the course of her legal career, Jackson has sat for three Senate confirmations and received minimal pushback from senators in that time. She was confirmed to her current position last summer with 53 votes in the Senate, including those of Republican Sens. Lindsey Graham of South Carolina, Susan Collins of Maine and Lisa Murkowski of Alaska. It is unclear whether they or other Republicans will support Jackson’s Supreme Court nomination.
“I would like to say that it shouldn’t change,” said Renee Knake Jefferson, a professor at the University of Houston Law Center. “If the senators are acting in good faith and found her qualified a year ago to join the D.C. Circuit Court of Appeals, then there’s nothing that has changed that would make her any less qualified to be elevated to the Supreme Court. But, I’m realistic.”
Graham threw his support behind another Supreme Court contender, J. Michelle Childs, who has been a district court judge in South Carolina since 2010. After the news of Jackson’s expected nomination, Graham tweeted that “the radical Left has won President Biden over yet again. The attacks by the Left on Judge Childs from South Carolina apparently worked.” He continued: “I expect a respectful but interesting hearing in the Senate Judiciary Committee.”
In a January interview with Alaska Public Media, Murkowski responded to a question about her past support for Jackson and the possibility of Jackson being nominated for the Supreme Court.
“Keep in mind there is a pretty tangible difference between being on a district court, a circuit court and then this Supreme Court. These are lifetime appointments,” Murkowski said, adding that she takes the Senate’s authority to evaluate and confirm presidential nominees “very, very seriously.”
Jackson’s past confirmations give some insight into the types of questions she may face as a Supreme Court nominee. When Jackson was considered for the D.C. circuit court last year, Republican Sen. Thom Tillis of North Carolina commented on the 118-page length of Jackson’s ruling on the McGahn testimony case, as well as the timing of Jackson being added to Demand Justice’s Supreme Court shortlist after that decision. In a written follow-up response, Jackson said the length of that opinion was determined by the legal questions she needed to address.
Last year, Republican Sen. John Cornyn of Texas also asked, “What role does race play, Judge Jackson, in the kind of judge you have been and the kind of judge you will be?”
She replied, “I would think that race would be the kind of thing that would be inappropriate to consider in my evaluation of a case,” and added that her life experiences may be different from some other judges, which she hopes would be valuable to the court.
This line of questioning is not unusual for Black women considered for judge positions, said Taneisha N. Means, an assistant professor of political science at Vassar College who researches judiciary representation. These Black nominees tend to be viewed as more radical or biased than their White counterparts, a notion that influences the types of questions senators ask about their race or beliefs about racial disparities, Means added.
Intensifying political divisions over the years have brought additional levels of scrutiny to judicial candidates, particularly for those of color, Goodwin said. “It’s unfortunate that there’s such a nefarious level of partisanship that incredibly accomplished nominees might not receive the full level of support that would otherwise be earned in a system of democracy where people weren’t just voting with party,” she said.
Jackson may also face questions about her time from 2010 to 2011 on the advisory board of Montrose Christian School, whose mission preached marriage as the union of one man and one woman and the importance of “the sanctity of all human life from conception to natural death.”
When asked about this last year, Jackson said she was primarily involved in planning for school fund-raising activities and was not aware the school had any statement of its beliefs on the website.
Recently Jackson’s involvement on the board of overseers at her alma mater Harvard University has emerged as a possible conflict of interest for an upcoming Supreme Court case seeking to strike down Harvard’s affirmative action practices as discriminatory. In the past, justices including Breyer and Elena Kagan have recused themselves from cases involving conflicts of interest.
Now that Jackson has been officially selected as the nominee, the Senate Judiciary Committee, led by Durbin, will collect and review documents and background information to prepare for the confirmation hearings. The average length of time from nomination to confirmation is a little more than two months, according to the Congressional Research Service. Justice Amy Coney Barrett was confirmed within 27 days of her nomination, making her confirmation one of the fastest.
