The conventional wisdom in Washington early Friday morning was that the continent-shaking invasion of Ukraine by Russia was so dominant that President Biden would have to delay the unveiling of his nominee to the Supreme Court.
One Washington political newsletter reported:
President Joe Biden has decided on his nominee for the Supreme Court to replace the retiring Justice Stephen Breyer, according to a source familiar with the situation. CNN was first to report this. The White House wants to announce the nominee today but would hold off if the situation in Ukraine intervenes.
As is often the case, the conventional wisdom was dead wrong. Ukraine was not 9/11 – a catastrophe that shook the foundations of the United States. Biden was determined to show, in the midst of war and crisis, that he could fulfill his constitutional responsibilities and present his choice of Judge Katanji Brown Jackson to the nation.
Biden could meet with NATO on the war in the morning and make history with the Supreme Court in the afternoon.
Since the Court was established in 1789, there have been 114 justices. 108 have been White men. Four have been women (including one, Justice Sonia Sotomayor, who is of Hispanic heritage), and two Black men.
“For too long,” the President said, “our government, our courts haven’t looked like America. And 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.”
“Among my many blessings — and indeed, the very first — is the fact that I was born in this great country. The United States of America is the greatest beacon of hope and democracy the world has ever known. Among my many blessings — and indeed, the very first — is the fact that I was born in this great country. The United States of America is the greatest beacon of hope and democracy the world has ever known.”
Judge Jackson replied,
In briefly recounting her life history, and love of law that she got from her father, she noted that she has family members who have had different lives. A brother who served as a police officer in Baltimore and had two tours of duty in the Middle East. Two other uncles who were police officers; one was police chief in Miami. And another uncle, who is serving a life sentence on a drug charge.
Judge Jackson also served on the US Sentencing Commission, which develops sentencing guidelines for federal courts. She has been a public defender and a trial court judge. These roles have given Judge Jackson a deep feel for the lived experience of those whose lives intersect with the legal system.
When Biden pledged in the 2020 presidential campaign to nominate the first Black woman to the Supreme Court, legal experts settled on Judge Jackson as the one most likely to be nominated because of her legal brilliance and compelling personal qualities.
Neal Katyal, a colleague and former Acting Solicitor General of the United States, who has argued numerous cases before the Supreme Court, was thrilled: “Ketanji Jackson Brown is one of the best judges in the nation. Brilliant and with deep values. That she is now joining our second highest Court is fitting and awesome.”
She will shine in her confirmation hearings. She has already cleared the Senate Judiciary Committee three times and received three Republican votes when she was confirmed to the second-highest court, the US Court of Appeals, where she serves today.
There have been rancid battles over nominations to the Supreme Court for decades, principally because of the ultimate political stakes involved in decisions affecting abortion, gun control, voting rights, civil rights, and election laws. Republican presidents have won the lottery on Court appointments, filling more vacancies than were available to presidents Clinton, Obama and now Biden.
The Court today has a solid 6-3 conservative majority. Judge Jackson’s appointment does not change that balance. This helps ensure that she will not become ensnarled in the vicious spectacles that some recent appointments triggered.
But partisanship in the Senate is still the touchstone, and Republicans have not been hesitant to criticize Biden’s choice.
Republican Leader Mitch McConnell said that 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.” Sen Lindsay Graham, the senior Republican on the Judiciary Committee was darker: “The radical Left has won President Biden over yet again.” Jackson was good enough for Graham to vote to confirm her for the Court of Appeals, but apparently she is not good enough to join the Supremes.
Other Senators have gone darker still, such as Roger Wicker of Mississippi:
“The irony is that the Supreme Court is, at the very same time, hearing cases about this sort of affirmative racial discrimination while adding someone who is the beneficiary of this sort of quota.”
Democrats are united and enthusiastic. And some Republican Senators are in play. Keep your eye on Mitt Romney, Susan Collins, Lisa Murkowski.
Biden’s fulfilling this pledge is critically important to keeping faith with Black voters – and their keeping faith with him.
Judge Jackson should be sworn in as Justice Jackson in July.
