26 February 22
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“I carefully studied the record of candidates,” he said. He wanted someone who would continue the “legacy of excellence and decency” built by Justice Stephen Breyer—whose pending retirement opened the way for Jackson—as well as his “pragmatic understanding that the law must work for the American people.” (Jackson was once Breyer’s clerk, and he has been quoted praising her as brilliant.) Biden mentioned other qualities: wisdom, integrity, courage, a “moral compass.” And he noted that the courts haven’t always “looked like America” and that “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.” Biden said that he’d found that person in Jackson.
Here, too, the reference was clear. Two years ago, during a Democratic debate, Biden committed to nominating a Black woman to the Supreme Court, should there be a vacancy. (No Black woman has ever served on the Court; only two Black men have.) When he said, following Breyer’s announcement, that he would keep that commitment, many Republicans treated it as a scandal. Their implication was that a qualified Black woman might be hard to find. She’s not. Jackson’s record—as a trial and appellate-court judge, as well as an editor of the Harvard Law Review, a judicial clerk, a federal defender, a lawyer in private practice, and a member of the U.S. Sentencing Commission—is well in keeping with past nominees, and in certain ways it goes deeper. Biden noted, for example, that Jackson and Sonia Sotomayor would be the only two Justices who had been trial court judges. She would also be the first former public defender.
Although this was Jackson’s formal introduction as the nominee, she is hardly unknown. She has had high-profile cases—notably, one in which she observed, in relation to some far-fetched Trump Administration claims about privilege, that “Presidents are not kings.” She was, very publicly, one of three finalists for the job, along with Leondra Kruger, of the California Supreme Court, and J. Michelle Childs, a South Carolina federal judge. (Biden had plenty of good choices.) There have already been profiles of Jackson that include interviews with one of her Miami high-school speech and debate teammates and her Harvard college and law-school roommates, and anecdotes about how, as a preschooler, she worked on coloring books while her father studied law—a detail that Biden mentioned, too. Her father became the chief lawyer for the Miami-Dade school system, and her mother was the principal of an arts-oriented magnet high school. Jackson met her husband, Patrick, whom she has described as a Boston Brahmin, at Harvard; on Friday, she called him “my rock today and every day.” (He is a surgeon, and they have two daughters, one in high school and the other in college.) Jackson alluded to the media’s scrutiny in her remarks, saying, “You may have read that I have one uncle who got caught up in the drug trade and received a life sentence. That is true.” Indeed, there have been in-depth stories about that uncle, whose sentence was commuted after he’d served almost thirty years in prison. His release came during a period, under President Barack Obama, in which many people with similarly long sentences received commutations, and Jackson’s only involvement seems to have been referring him to a law firm that handled such cases. Still, it is easy to predict that Republicans will attempt to make an issue of it. Jackson continued, “But law enforcement also runs in my family.” Her brother was a detective in Baltimore before serving in the military; two of her uncles also worked in law enforcement, and one served as the Miami police chief. Biden quoted a statement from the National Fraternal Order of Police saying that, in the organization’s view, “There is little doubt that she has the temperament, intellect, legal experience, and family background to have earned this appointment.”
But, if doubt can’t be found, there are senators ready to manufacture it. The fact that Jackson is eminently qualified doesn’t mean that her confirmation hearing won’t be a bonfire of bad faith—far from it. She has gone through two judicial confirmations in the past ten years, but the Senate has changed quickly. In 2012, after Obama nominated her to become a federal district-court judge, one of the people who introduced her at her hearings was then Representative Paul Ryan, who is a relative of hers by marriage. (Her husband’s twin brother is married to Ryan’s wife’s sister.) “I am here to serve as a character witness,” Ryan told the senators. “Now, our politics may differ, but my praise for Ketanji’s intellect, for her character, for her integrity—it is unequivocal. She is an amazing person, and I favorably recommend your consideration.” Her confirmation was delayed as the Senate waited for the outcome of that year’s Presidential election, but she eventually went through on a voice vote (meaning that there was no roll call). Between those hearings and now, Ryan was the Vice-Presidential nominee on Mitt Romney’s losing 2012 ticket, became Speaker of the House, was mocked by Trump, endorsed Trump, struggled with Trump, compromised with Trump, and left politics—diminished, like so many of his colleagues, by Trump. When the Senate considered Jackson’s nomination for the D.C. Court of Appeals, in 2021, only three Republicans voted for her: Susan Collins, of Maine; Lindsey Graham, of South Carolina; and Lisa Murkowski, of Alaska. Romney, now a Utah senator, voted no.
Graham, who likes to brag about his willingness to vote for Democratic appointees—in a notable rant during the Kavanaugh hearings, he said, “When you see Sotomayor and Kagan, tell them that Lindsey said hello, because I voted for them. I would never do to them what you’ve done to this guy”—had made a point of welcoming a potential Childs nomination. His response to Jackson’s nomination suggests that his interest in doing so may have been less about building bipartisanship than about giving himself an alibi for tantrums to come. Graham tweeted that Jackson’s selection means that “the radical Left has won President Biden over yet again.” This is nonsense. Graham added that “attacks by the Left on Judge Childs from South Carolina apparently worked” and that the “Harvard-Yale train to the Supreme Court continues to run unabated”—an incoherent jumble of claims of victimhood and disparagement that is probably useful only as a preview of attacks to come during Jackson’s confirmation hearings. (Kavanaugh, incidentally, went to Yale.) In contrast, Representative James Clyburn, also of South Carolina, whom Biden credited with helping him win the state, and who had been Childs’s advocate, said on Friday, according to the Times, that he wanted to thank Biden not only for keeping his promise to nominate a Black woman but “for doing it in a way that makes all of us proud.”
Jackson may have to be confirmed without a single Republican vote. (Since the Democrats hold fifty seats, it would require Vice-President Kamala Harris to cast the tie-breaker—and that is assuming that Senator Ben Ray Luján, of New Mexico, returns to vote, as expected, after recovering from a recent stroke.) The confirmation hearing will likely include insinuations that Jackson, by assisting in submitting briefs about habeas corpus for Guantánamo prisoners when she was an assistant federal public defender, aided terrorist causes—rather than aiding the cause of making sure that the Constitution operates for everybody. (The issue came up at her previous confirmation.) In her 2021 hearing, Senator Josh Hawley, of Missouri, tried to make Jackson’s service on a Christian school’s board an issue, arguing, in some convoluted way, that it proved that Democratic senators were hypocrites, because of how they had questioned Justice Amy Coney Barrett’s service as a trustee of a Christian school—or something like that. Jackson’s faith, at any rate, is clearly important to her; after Biden announced her Supreme Court nomination, she opened her remarks by thanking God “for delivering me to this point.”
And she had other people to thank, including the late Constance Baker Motley, the first Black woman to serve as a federal judge—with whom, she said, she shared a birthday—and Breyer, who “exemplified in 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.” Addressing him directly, she added, “Justice Breyer, the members of the Senate will decide if I fill your seat, but please know that I could never fill your shoes.”
Jackson’s confirmation will not change the current balance on the Court, with its six conservatives and three liberals. But it is highly significant. Breyer is eighty-three, just a few years younger than Ruth Bader Ginsburg was when she died. Jackson is fifty-one; in the thirty years that she may sit on the Court, the ideological equation will undoubtedly change, and change again. The arguments and the reasoning on the Court—the voices heard there—matter even when the only vehicle of expression for Justices in the minority is a dissent. This is a Court that seems ready, on issues ranging from abortion and guns to affirmative action and voting rights, to engage in momentous national debates. Jackson, if she’s confirmed, will be writing that history, too.
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