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Judge Ketanji Brown Jackson, of the U.S. Court of Appeals for the District of Columbia Circuit, will be President Biden’s nominee for the Supreme Court.
President Biden’s pick of Ketanji Brown Jackson should be evaluated not for what it will mean for the Supreme Court in 2022, but for what it might mean in 2040 or 2050 when her vote could be decisive in finally moving constitutional law in a more progressive direction. Judge Jackson is 51 years old. If she remains on the Court until she’s 90, the age at which Justice John Paul Stevens retired, she will be a justice until the year 2061.
The reality, of course, is that Judge Jackson’s replacing Justice Stephen Breyer does not change the current ideological composition of the Court. It will continue to have six very conservative justices and three liberal justices. This pick for the Court does not cure its ideological imbalance or end the need for progressives to consider increasing the size of the Supreme Court. Between 1960 and 2020, there were 32 years with Republican presidents and 28 years with Democratic presidents, but Republican presidents picked 15 Supreme Court justices and Democratic presidents selected only eight. Or put another way, President Donald Trump nominated three Supreme Court justices while in office for four years, while Presidents Jimmy Carter, Bill Clinton, and Barack Obama chose only four justices in a combined 20 years in office.
That is why every pick for the Supreme Court is crucial and cannot be squandered. Jackson likely will hold this seat for decades. But this is not to lessen the importance of what she brings to the Court now and how it could have an influence in many cases to be decided in the years ahead.
She will be the only one of the justices to have served as a public defender, and perhaps the first ever to join the Court after serving in this role. This brings an essential and missing perspective to the Court that decides major issues in policing and the criminal justice system. She also had seven years’ experience as a trial judge, something only Justice Sonia Sotomayor among current justices has had. The Court constantly must give guidance to lower courts on the myriad of issues that they confront on a daily basis, and having another justice who brings that perspective only can be crucial.
She also would be the first Black woman to serve on the Court, and thus brings the perspectives that come from experiences that no other justice has had. I had mixed feelings about President Biden announcing, both when a candidate and then upon Justice Breyer’s resignation, that he was going to appoint a Black woman. On the one hand, I agree with the importance of having a Black woman on the Court, something that sadly never has occurred previously in American history.
But I feared presenting it in this way would cause some to think that the nominee would be chosen only on account of race and sex and, as one commentator infamously and offensively said, Biden’s pick would be a “lesser” nominee. In fact, Judge Jackson is as qualified as anyone in history to be nominated for the Supreme Court. A graduate of Harvard College and Harvard Law School, she clerked at every level of the federal courts, including on the Supreme Court for Justice Breyer. She has a wealth of practice experience in diverse settings and almost nine years of experience as a federal judge, for which she has received great praise for her judicial ability, integrity, and temperament.
Some Republicans are sure to try to slime her, as they would any Biden nominee. But having looked closely at her record, there is nothing there to attack. She has had an exemplary career as a judge and as a lawyer. I naïvely hope that she will receive overwhelming bipartisan support, but that seems unrealistic at this moment of bitter partisan divisions.
I worried that President Biden would feel pressure to pick a moderate for the Court. But that would have been a mistake. It should not be the case that Republicans pick justices and judges from the far right while Democratic presidents can pick only from the middle. In choosing Judge Jackson, President Biden has put someone on the Court who can be a needed progressive voice for years, indeed decades, to come.
