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Assessing Biden’s Nominee

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eye on the news

Assessing Biden’s Nominee

Judge Ketanji Brown Jackson will give progressives much to cheer but may also produce some libertarian-friendly rulings. March 1, 2022
Politics and law

Last Friday, President Biden nominated Judge Ketanji Brown Jackson of the U.S. Court of Appeals for the D.C. Circuit to fill the U.S. Supreme Court vacancy created by Justice Stephen Breyer’s announced retirement. Her nomination was broadly expected. Assuming she is confirmed by the Senate—and she will be, absent a currently unknown revelation—Judge Brown Jackson will be the 104th associate justice to sit on the nation’s highest bench.

Brown Jackson would also be the first black woman on the Court, fulfilling a public promise Biden made in advance of the South Carolina primary. (Biden’s pledge was necessary to secure a sorely needed endorsement from Representative Jim Clyburn, viewed as essential to rebooting his then-struggling presidential campaign.)

At least on paper, Brown Jackson has the sort of star-studded academic pedigree we’re used to seeing in Supreme Court nominees: an award-winning high school debater; an honors graduate of Harvard College and Harvard Law School; and a former Supreme Court clerk herself—in this case for the justice she’ll be replacing, Stephen Breyer. (Six of the nine current jurists on the Supreme Court were Supreme Court clerks themselves, including Breyer; two, Brett Kavanaugh and Chief Justice John Roberts, also clerked for the justice they replaced.)

Beneath the surface, however, Brown Jackson’s background differs from that of other recent nominees in ways that reflect the current progressive zeitgeist—particularly on the question of criminal justice. Atypically for a federal judicial appointee, Brown Jackson spent some of her early legal career as a federal public defender, representing indigent individuals accused of crimes. Judicial nominees have more typically served as government prosecutors, as did Justice Sonia Sotomayor in the New York County district attorney’s office in her first job out of law school.

In many other respects, Brown Jackson’s background makes her a dream nominee of sorts for some criminal-justice reformers. She served as an assistant special counsel to the United States Sentencing Commission; and from 2010 through 2014, she served as the commission’s vice chair. During that period, the commission lowered the federal sentencing guideline range for offenses involving crack cocaine. (Brown Jackson also helped persuade President Obama to commute the life sentence of an uncle serving a life sentence for a drug-related third criminal conviction that triggered a “three-strikes” law.) Brown Jackson’s senior thesis at Harvard was entitled “The Hand of Oppression: Plea Bargaining Processes and the Coercion of Criminal Defendants.”

In general, then, we can expect a Justice Brown Jackson to be highly skeptical of the government in criminal cases. Senators worried about the recent spike in urban crime will surely press her on her criminal-justice views during confirmation hearings.

Beyond criminal law, progressives doubtless rallied to Brown Jackson’s camp in part due to some of the judicial opinions she issued as a federal district judge (she’s served on the appeals court only since last summer). From her D.C. trial court perch, Brown Jackson often served as a one-woman “resistance” to President Trump’s agenda, including on core Democratic Party concerns like labor unionization and immigration. Consider:

In American Federation of Government Employees, AFL-CIO v. Trump, in 2018, Judge Brown Jackson slapped down significant portions of three Trump executive orders involving federal government bargaining with labor unions. (She also ruled in favor of public-sector unions in her first published opinion on the D.C. Circuit earlier this month.)

In Make the Road New York v. McAleenan, in 2019, Judge Brown Jackson enjoined the Trump administration’s Department of Homeland Security from implementing its plan to expedite removal of illegal aliens who had arrived in the country within the last two years.

In Committee on the Judiciary of the U.S. House of Representatives v. McGahn, also in 2019, Judge Brown Jackson ruled that the Democrat-controlled Judiciary Committee in the House of Representatives could compel former Trump counsel Don McGahn to testify about White House conversations. Her opinion contains pithy statements like “Presidents are not kings” and “The United States of America has a government of laws and not of men.”

Those skeptical of Brown Jackson’s appointment will doubtless continue to note that all three of these anti-Trump district court opinions were reversed on appeal—the first two unanimously, and involving Democrat-appointed progressive luminaries among her current D.C. Circuit colleagues. Of course, all lower-court judges are sometimes reversed. But because these cases involve heavy-lift opinions (each spanning from 118 to 122 pages), executive power and the Trump administration, core questions of administrative and constitutional law, and hot-button political concerns, these particular reversals will likely be much in the spotlight when Brown Jackson testifies before the Senate Judiciary Committee.

Progressive activists, however, are unlikely to worry that appellate court judges of both parties have reversed Brown Jackson in some of her most prominent opinions. After all, on the Supreme Court, a jurist is not subject to reversal. And in many left-wing activists’ eyes, the important thing is that Brown Jackson’s decisions in these cases were from their perspective directionally correct: anti-Trump, pro-labor, pro-immigrant. That makes Brown Jackson a safer progressive pick than Congressman Clyburn’s preferred choice, federal district judge Michelle Childs of South Carolina, who represented employers in labor disputes in private practice before joining the federal bench and who levied criminal sentences some progressives labeled unduly “punitive.”

Is there any silver lining in Brown Jackson’s appointment for conservatives? Her commitment to the criminally accused will please at least some of the more libertarian-oriented of the conservative coalition. She wrote a Supreme Court amicus brief on behalf of the Cato Institute and Rutherford Institute. (Her argument was that it was illegal for the military to detain without trial a suspected terrorist, Ali Saleh Kahlah al-Marri, who was lawfully within the United States. After the Supreme Court agreed to hear the case but before it resolved it, the new Obama administration transferred al-Marri’s case to the Department of Justice, after which he pleaded guilty to conspiring to provide material support or resources to a foreign terrorist organization.) I can envision Brown Jackson joining many an opinion with libertarian-leaning justice Neil Gorsuch in criminal-law matters—including in at least some cases implicating administrative overreach through overcriminalization and regulation by prosecution.

For those (like me) worried about the litigation explosion and plaintiffs’ bar overreach, there’s at least some evidence that a Justice Brown Jackson—like her old boss Justice Breyer—won’t be a lock-step supporter of the civil lawsuit. In her most recent district court decision to be overruled by the D.C. Circuit—on February 11—Judge Brown Jackson ruled before trial that a plaintiff was barred from suing Washington’s Metropolitan Area Transit Authority on behalf of the estate of a man, Cameroon Whiteru, who had fallen to his death there. Judge Brown Jackson ruled that because Whiteru only fell due to his own extreme intoxication, the lawsuit was barred under the doctrine of contributory negligence. The reasons why the appeals panel disagreed are fact-specific, but the broad point here is that we should not expect a Justice Brown Jackson to be a plaintiffs’ bar rubber stamp. We can reach a similar conclusion from her decision to dismiss a 2018 aviation-crash lawsuit, In re: Air Crash Over the Southern Indian Ocean, on forum-selection grounds. (She ruled that the lawsuit needed to be brought in Malaysia, where the crash occurred, rather than in the United States.)

It is also noteworthy that Judge Brown Jackson previously served on the board of advisors of a Baptist-affiliated school, Montrose Christian, which had an express statement of beliefs including “the uniting of one man and one woman in covenant commitment for a lifetime” and defining children “from the moment of conception” as “a blessing and heritage from the Lord.” She also served as a graduation speaker for the school. (Justice Amy Coney Barrett came under fire from critics during her own confirmation process for her ties to a similar Christian school.)

There’s no evidence that the school’s policies reflect Brown Jackson’s personal beliefs, and no one should expect a Justice Brown Jackson to support anything but standard progressive positions on baseline questions of gay marriage or abortion. After all, this is a nominee who helped draft an amicus brief for NARAL and other pro-abortion groups in McGuire v. Reilly, arguing in favor of a “buffer zone” limiting protests around abortion facilities. Planned Parenthood has backed her nomination.

Still, as the Supreme Court wrestles with how to carve out space under otherwise generally applicable laws for objectors following their religious conscience, Brown Jackson’s affiliation with Montrose offers at least some hope for believers looking for broader protections of religious liberty. I wouldn’t want to place bets here, but the prospects for Brown Jackson joining more conservative colleagues on some of these cases may be greater than for someone like California supreme court justice Leondra Kruger, another Biden Court short-lister. Kruger argued in the Supreme Court on behalf of the Obama administration for a particularly narrow reading of the “ministerial exception” from general employment laws for church-affiliated entities in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. At oral argument, even Obama-appointed Justice Elena Kagan said she was “amazed” by Kruger’s positions, which the full Supreme Court rejected unanimously.

A final point of interest is that Judge Brown Jackson serves on Harvard’s board of overseers, and in her first term as a justice, the Court will face a challenge to the race-conscious “affirmative action” admissions policies at her alma mater, as well as at the University of North Carolina. She may have to recuse herself from the Harvard case. I’d expect senators to question her heavily here—especially in light of the public’s generally mixed reactions to Biden’s explicitly race- and sex-driven nomination criteria, which reflects in part broader societal debates over race- and sex-based affirmative action in hiring and education. Though Senate questioners should handle this delicately, Brown Jackson’s Harvard affiliation and the potential conflict that arises are fair game.

Overall, expect a justice Ketanji Brown Jackson to support broadly progressive positions in the vast majority of cases. Given the modern rules of judicial confirmations, it’s totally appropriate for senators preferring conservative jurisprudence to vote against her confirmation on those grounds alone.

That said, don’t expect Senate Republicans to launch a holy war opposition along the lines of what Democrats arrayed against the last two GOP nominees—efforts largely spurred on by former Chuck Schumer staffer Brian Fallon’s well-funded Demand Justice 501(c)(4) advocacy group. Ideology aside, Judge Brown Jackson meets the standard professional qualifications for the Supreme Court, and she’s personally well-regarded by every source I can consult. She’s even related by marriage to former GOP Speaker Paul Ryan. (Brown Jackson’s husband is the identical twin brother of the husband of Ryan’s sister-in-law. When Brown Jackson was first nominated to the federal bench by President Obama in 2012, Ryan introduced her: “Our politics may differ, but my praise for Ketanji’s intellect, for her character, for her integrity, it is unequivocal.”)

Ultimately, elections have consequences. The Democrats control both the White House and the Senate. (Had former President Trump not compromised the 2021 runoff election of two incumbent Georgia senators in a fit of post-election pique, Mitch McConnell, not Chuck Schumer, would control the confirmation process.) Judge Brown Jackson received 53 votes for her confirmation to the D.C. Circuit just last summer—including those of all Democrat Senators and GOP Senators Susan Collins (Maine), Lisa Murkowski (Alaska), and Lindsey Graham (South Carolina). Senators might well treat a Supreme Court confirmation differently from a judgeship on a lower court, but it would take an extraordinary revelation to scuttle this nomination.

This doesn’t mean that Republican senators shouldn’t ask hard questions of Judge Brown Jackson. They should do so respectfully and thoughtfully. Their inquiries will serve the valuable function of highlighting for the public the differences in judicial philosophy between themselves and their Democratic colleagues. After all, Republicans in the Senate don’t have the votes—for now. But there’s another election coming up in November.

Photo by Drew Angerer/Getty Images

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