Ketanji Brown Jackson is set to become the first black female Supreme Court associate justice, assuming she is confirmed by the U.S. Senate. Her nomination was announced on Friday, Feb. 25, in accordance with Joe Biden’s pledge to put a black woman on the bench. Judge Jackson, 51, currently serves on the U.S. Court of Appeals for the District of Columbia. In addition to being a former public defender and trial court judge, Jackson clerked for Supreme Court Justice Stephen Breyer, who she will be replacing.
Liberty Nation’s legal affairs editor, Scott D. Cosenza, offers his thoughts on Jackson’s nomination and how she measures up to the nation’s highest court.
Graham J. Noble: The question for most Supreme Court watchers, or at least for most of us laypeople, always seems to be, how each new nomination affects the political balance of the court. So, would Ketanji Brown Jackson, assuming she is confirmed, tip the scales in any notable way in favor of the “liberal” philosophy?
Scott D. Cosenza: I think her confirmation is a safe bet. Given her background and experience, she will be an easy vote for all the Democrat senators and a few Republicans too. Her appointment doesn’t look like it will shift the pivot point between the left and right wings on the current court. We still have much to learn about her, however. Most of her previous experience hasn’t put her views on wedge issues on display. She has spent much time as a judge in the District Court but has been on the D.C. Circuit Court of Appeals for only nine months. Appeals court judging offers much more opportunity for examining a jurist’s ideas than the lower courts.
GJN: For the Democratic Party’s progressive cadre, steering the court in a decidedly left-wing direction is a main priority. Based on her record as a jurist, do you believe the far left will consider Judge Jackson an acceptable nominee? Is the mere fact that she is a black woman enough to satisfy progressives?
SDC: I am betting they will give her a pass. In the lead-up to this decision, some major forces pushed for J. Michelle Childs to win the nomination. Childs is a U.S. District Court judge in South Carolina, pushed by both House Majority Whip Jim Clyburn (D-SC) and Sen. Lindsey Graham (R-SC). She was the beneficiary of a soft-focus piece in The New York Times and seemed to be getting the official seal of approval from the establishment. She is a black woman, the necessary precondition for consideration, per Biden – and Clyburn is the reason that quota exists. There was also a counter-movement, though.
Childs was a lawyer against labor and represented some clients disliked by progressives. She also sentenced a man to prison for a dozen years for selling 8oz. of marijuana. Many progressives find that disqualifying. The pushback against Childs’ potential nomination animated the left in ways I don’t see, when it comes to Judge Jackson. She spent two years as a federal public defender. While she has very close ties to law enforcement as the sister and niece of police officers, her uncle was given a life sentence for a nonviolent drug crime. Perhaps progressives will be happy enough not to get Childs to be satisfied with Jackson.
GJN: Does Jackson’s record tell you anything about what we could expect from her as an associate justice? Is she likely to be another Sotomayor; impulsive, partisan, and often seemingly not well-armed with the facts or do you expect from her a more measured and, it has to be said, professional approach to constitutional disputes? Is there any one opinion or case that jumps out at you as either encouraging or worrying?
SDC: There is nothing about Judge Jackson’s history to indicate she will be especially impulsive or partisan. She seems well suited to the role of justice. Jackson, whose father was a lawyer, has been moving from one prestigious position and clerkship to another for her whole career. She is a former clerk of Justice Breyer. I expect her to be a reliable vote for the left, as Justice Breyer would, and also deviate from partisan wishes when she believes they are wrong, as Breyer seemed to do. We should expect some deviation in different areas; however, I don’t expect her to be a clone. Seeing where those differences lie is one of the exciting things about watching how the Supreme Court works.
Based on her previous work, I expect her to be a solid vote supporting pro-choice preferred legal positions. Jackson signed a “friend of the court” brief supporting a Massachusetts law that created a floating “buffer zone” around pedestrians and cars approaching abortion clinics.
GJN: What stands out for you about Jackson?
SDC: Leaving aside the race and sex-based discrimination baked into her nomination, it’s that public defender experience. The last time someone with significant criminal defense experience served on the Supreme Court was Thurgood Marshall, who retired in 1991. I expect that experience of hers to color her opinions occasionally with great significance.