Special Report: Historic Choice for the High Court

A Historic Nomination

On February 25, President Biden introduced his selection of federal judge Ketanji Brown Jackson to serve as the next justice on the Supreme Court to replace the retiring Justice Stephen G. Breyer. This pick allowed Biden to follow through on a campaign pledge to nominate the first Black woman to the nation’s highest court in its 233-year history.

Now confirmed, Ketanji Brown Jackson, 51, will be the third African-American to serve on the Supreme Court, proceeded only by Thurgood Marshall and Clarence Thomas. Jackson was most recently a judge on the U.S. Court of Appeals for the D.C. Circuit, appointed and confirmed last year for the position. Senate Judiciary Committee Chairman Richard Durbin had publicly set a goal of confirming Biden’s nominee before the Easter recess, which began on April 8.

During Friday’s event at the White House, President Biden said Jackson is “someone with extraordinary character” and “will bring to the Supreme Court an independent-minded, uncompromising integrity.” After being introduced, Jackson said the United States is “the greatest beacon of hope and democracy” and credited her nomination to God and family.

“For too long, our government and our courts haven’t looked like America,” said Biden, a reference to his earlier statements during the campaign about nominating a black woman to the Supreme Court if he was elected. Biden’s commitment to this selection was strongly influenced by U.S. Representative Jim Clyburn from South Carolina. It was Clyburn’s endorsement during the democratic primaries that revived Biden’s struggling campaign, and this was one of the representative’s stipulations.

“If I’m fortunate enough to be confirmed as the next associate justice of the Supreme Court United States, I can only hope that my life and career, my love of this country and the Constitution, and my commitment to upholding the rule of law and the sacred principles upon which this great nation was founded, will inspire future generations of Americans,” Jackson said.

History Part 2: The First Public Defender

Judge Jackson has also made history as the first former public defender to become a Supreme Court justice and the only member of the court since Thurgood Marshall to have experience as a criminal defense attorney.

In a letter sent to President Biden before his choice was made public, twelve progressive groups urged him to select someone with a background working as a public defender or in civil rights in order to build on his commitment to professional diversity with judicial nominations.

While this experience was hailed by Democrats and supporters as giving Jackson a true understanding of the judicial system, some Republicans had seized upon this background by characterizing it as defending violent criminals and putting them back on the streets.

The Constitution’s protection of criminal defendants’ right to counsel and Jackson’s work as a federal public defender was indeed front and center during the contentious confirmation hearings over two consecutive days as a trio of Republican senators (Cotton, Cruz, and Hawley) interrogated Jackson about sentences she had imposed that fell below federal guidelines.

Judge Jackson’s experience also included more than eight years on the federal bench, serving on the U.S. Sentencing Commission, and clerking for Justice Breyer early in her career. It was reported that her work for Breyer, whom she will be replacing, was particularly noteworthy to President Biden and convinced him that her appointment would make for an ideal alternate to Breyer.

Confirmation Hearings and Court Packing

Jackson’s nomination came at a time when Democrats hold a razor-thin majority in the Senate, and Vice President Kamala Harris, who presided over Thursday's Senate vote, may have been needed as the tie-breaker. Republican leader Mitch McConnell had called Judge Jackson “the favored choice of far-left dark-money groups that have spent years attacking the legitimacy and structure of the court itself,” signaling that her confirmation would be a tough fight.

McConnell’s focus on “dark-money” refers to politically active non-profits that are under no legal obligation to disclose their donors, but can then give unlimited amounts of money to super PACs, who do spend their money to influence politics. These groups have become much more prominent in recent years, reaching into all facets of governing, including nominations to the Supreme Court. McConnell has also suggested that if Republicans regain the Senate majority in the midterm elections, he could block any further Biden Supreme Court nominees.

Although Biden’s selection does not fundamentally alter the Supreme Court’s 6-to-3 conservative majority, nominations to the high court have become increasingly volatile in recent years. Beginning with President Obama’s nomination of Merrick Garland in March 2016, which was purposely stalled by Senator McConnell because of the upcoming election, this partisan conflict was followed by the highly controversial nomination of Brett Kavanaugh and the hypocritical, fast-tracked confirmation of Amy Coney Barrett only days before the 2020 election.

Barrett’s confirmation renewed calls for Democrats to increase the number of justices on the country’s highest court, commonly referred to as “court-packing.” Since the Constitution does not specify the number of justices on the Supreme Court, there is no codified requirement for nine, so historically, that number of has vacillated between five and ten.

The last attempt to change the size of the Court was FDR’s proposed plan in 1937 in response to a series of Supreme Court decisions that struck down his New Deal legislation. Although his plan was never voted upon in Congress, according to Rutgers Law School professor David Noll, “it arguably succeeded in constraining the Court's attack on the New Deal.”

As the confirmations for Supreme Court nominations have become more partisan and political operatives exert more influence on the decision-making process, the implications for the future of the American system of checks and balances are dire. Instead of being considered as an independent and impartial branch of government, the United States Supreme Court may soon be viewed as just another political arm of whichever party has confirmed the majority of its justices.

As a critical check on the power of the legislative and executive branches, the judicial branch must remain the arbiter of what is in the best interest of the republic, and not any one political party in that republic.