'A historic nomination': The hearing of Ketanji Brown Jackson, Biden's Supreme Court pick

The nomination & hearing of Judge Ketanji Brown Jackson
7 min read
25 March, 2022
In-depth: If confirmed, Judge Ketanji Brown Jackson would be the first Black woman to serve on the US Supreme Court. She would also be among the most qualified.

Two years ago, as a candidate struggling to win over Democratic voters in the primary round of the American elections, Joe Biden announced that, if elected, he would appoint a Black woman to the Supreme Court. It was a turning point in his race that helped win him the endorsement of Representative Jim Clyburn, which many credit with his eventual presidential victory.

Biden’s opportunity to follow through on his promise of nominating a new justice came with the retirement of Justice Stephen Breyer in January. While many praised Biden for his nomination of Judge Ketanji Brown Jackson who, if confirmed, would make history as the first black woman to ever serve on the US Supreme Court, others described his decision as racist for focusing on the candidate’s identity.

For those who have long been hoping to see this glass ceiling broken, Biden’s announcement of appointing Jackson came as a mixed blessing.

Susan Liebell, a professor of political science and public law at St. Joseph’s University, described her reaction as twofold: both strategic and cynical.

"While many praised Biden for his nomination of Judge Ketanji Brown Jackson who, if confirmed, would make history as the first black woman to ever serve on the US Supreme Court, others described his decision as racist for focusing on the candidate’s identity"

“He shouldn’t have said it out loud,” she tells The New Arab. “He would be unable to explain the truth, which is that we’ve had centuries of an approach where we did not include people of colour or women.”

She points to numerous examples of "window dressing" dating back around a hundred years, to the time of Calvin Coolidge, whereby women made the short list for the Supreme Court and somehow consistently got passed over.

Identity politics is nothing new

Anyone accusing Biden of playing identity politics should look no further than Ronald Reagan’s promise to appoint a woman justice, resulting in the confirmation of Sandra Day O’Connor. George H.W. Bush also replaced renowned civil rights advocate Thurgood Marshall with Clarence Thomas, best known for allegations of sexual misconduct and these days for his wife’s attendance of the 6 January riots.

“Should we engage in identity politics? I think the genie is out of the bottle,” Stephen Wermiel, professor of practice of constitutional law at American University, tells TNA. “When was the last time senators asked if a white male would bring a white male perspective, or a prosecutor’s perspective?”

As part of her confirmation process, Supreme Court nominee Judge Ketanji Brown Jackson has been subjected to tough questions from Republican senators, many unrelated to her qualifications. [Getty]
As part of her confirmation process, Supreme Court nominee Judge Ketanji Brown Jackson has been subjected to tough questions from Republican senators, many unrelated to her qualifications. [Getty]

If confirmed, which appears likely, Jackson will not only be the first Black woman. She will also be the first public defender since Thurgood Marshall to serve on the Supreme Court. She will come to the court with more experience than several of the other justices combined.

She will also be starting her position with a lot of the traditional qualifications under her belt. She clerked for Breyer, often considered a passing of the torch for someone filling the last justice’s shoes. Like most other justices, she is a graduate of Harvard Law School, where she served as a supervising editor of the Harvard Law Review.  

Like Breyer, she comes from a middle-class background, and like him she has been able to work her way up through her education and work.

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Bizarre questions

Jackson’s solid credentials haven’t stopped some senators from asking bizarre questions unrelated to her record.

In one instance, South Carolina Senator Lindsey Graham asked her to rate her piousness on a scale from one to ten, a question she refused to answer, citing her responsibility to rule objectively as a justice. He proceeded to walk out in the middle of the hearing.

At another point, Texas Senator Ted Cruz gave a demonstration using blown up pictures of a children’s book about racism, a publication that is apparently at the library of a school where Jackson serves on the board (where she has no connection to the reading material chosen at the school).

In an apparent decision to continue with the culture wars theme, Tennessee Senator Marsha Blackburn asked Jackson for her definition of woman, another question she was able to deflect.

In addressing these questions, Jackson used what has become known as the Ginsberg Rule, named after the late Justice Ruth Bader Ginsberg, saying that it would be inappropriate to give hints about how she would rule on future cases.

"In spite of the odd line of questions... Jackson has remained calm, often smiling as she responds to questions unrelated to her qualifications"

“We find that the senators on the Senate Judiciary Committee, especially those not of the president’s party, tend to do what we call grandstanding, trying to show off to their constituents,” Elizabeth Lane, assistant professor of political science at Louisiana State University, tells TNA. “That’s why Ted Cruz made a big move about the school. In the south, CRT [critical race theory] is a big buzzword.”

In addition to trying to appeal to their base, Republicans also appeared to be tapping into conspiracy theories, invoking the hot-button issue of paedophilia in suggesting that Jackson had been too lenient as a federal district court judge in sentencing of sex offenders related to child pornography.

“It would be laughable if it were not such a serious situation. GOP questioning has ranged from somewhat normal, biting questions to absolutely ludicrous questions to just plain stupid,” Frank Ravitch, professor of law at Michigan State University, tells TNA, lamenting the politicisation in recent years of the Supreme Court confirmation process, which he has found often overshadows their intellect and qualifications.

“Senator [Josh] Hawley's questioning, for example, was in both of the latter categories, ludicrous and stupid. The whole letting off paedophiles line of questioning ignores the reality of what Judge Jackson did in those cases and changes in sentencing guidelines that she was restricted by.”

In spite of the odd line of questions, including repeated interruptions by Graham and Cruz, as well as not addressing her by her professional title, Jackson has remained calm, often smiling as she responds to questions unrelated to her qualifications.

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Biden’s strategy

Biden likely had several motivations for nominating Jackson. First, his polling with progressives as well as Black voters has fallen in recent months. According to a Pew Research Centre survey from January, 65 percent of Black Protestants approve of Biden's performance, down from 92 percent in March 2021, a couple of months after he came to office.

These lower numbers are likely a result of the administration’s inability so far to pass comprehensive voting rights reform, the failure to pass the Build Back Better bill, and the stalling of other legislation important to the base of the party. In nominating Jackson, he gave a nod to his base.

Second, in choosing her over other candidates who come from outside Washington, DC, he creates a vacancy on the DC Circuit Court that he will be able to fill, assuming his nominee gets the required votes.

Third, Jackson has the most relevant experience out of all the other shortlisted candidates, which in theory could make it more difficult for her critics to dismiss her.

"Young Black women and girls, seeing someone like that in a position of power, being the final arbiter of the law – that’s incredibly powerful"

A lifetime position

It is unclear how long it will take for Jackson to make an impact on the court, given its 6-3 conservative supermajority and the young age of several of the recently confirmed Supreme Court justices under the previous administration. Moreover, the long history of Republican presidents appointing justices who gradually veer toward the left over time is likely a thing of the past, as the court sees increasing polarisation.

What is clear is that Jackson’s presence on the court will have an impact far beyond her immediate circle.

“Even though the Supreme Court is not a representative body like Congress, seeing someone who looks like you is powerful,” says Lane, noting the judge's African name and natural hair. “Young Black women and girls, seeing someone like that in a position of power, being the final arbiter of the law – that’s incredibly powerful.”

Taking the long-term view, Paul Collins, a professor of legal studies and political science at the University of Massachusetts Amherst tells TNA, “If confirmed, Judge Jackson will be the first female Black justice in the nation’s history, an important milestone.”

He says, “Her background as a trial court judge, a public defender, and as a member of the US Sentencing Commission also suggests she will bring a unique perspective to bear on criminal matters. While she won’t shift the ideological balance of the Court, she will likely bring a more progressive vision to the Court than her predecessor, Justice Breyer.”

Brooke Anderson is The New Arab's correspondent in Washington DC, covering US and international politics, business, and culture.

Follow her on Twitter: @Brookethenews