From a Washington Post column by Ruth Marcus headlined “I’ve covered the Supreme Court for years. Here’s what to know about Jackson’s nomination.”:
As someone who’s reported on the Supreme Court for more years than I’d like to admit, I’ve seen my fair share of nominees and confirmation fights. Here’s what to know about President Biden’s nomination of Ketanji Brown Jackson to the Supreme Court, and what we can expect from her confirmation process.
1. A new justice matters in the long term
There are six conservative justices on the court, and none of them are likely to leave any time soon. So does the swap of Jackson for Stephen G. Breyer even matter?
It’s a depressing question. In the short run, and in terms of the bottom-line vote in controversial cases, there won’t be much difference. A six-justice majority means that the three remaining liberals, whoever they are, will be pretty much relegated to issuing dissents. The most they can hope for, most of the time, is to lure one of the conservatives — most likely Chief Justice John G. Roberts Jr. — to their side. But losing 5 to 4 instead of 6 to 3 isn’t much consolation.
That said, of course a new justice matters. If Breyer, 83, had chosen to remain, filling his seat might have been a challenge for Biden if Republicans were to gain control of the Senate in the midterm elections; conversely, the addition of Jackson, 51, will put a liberal justice in that seat for decades to come.
And while the court’s three youngest current members are the trio of conservatives appointed by President Donald Trump, Justice Clarence Thomas is 73, Justice Samuel A. Alito Jr. is 71, and the chief justice is 67. Without being unduly macabre, the sudden death of Justice Antonin Scalia in 2016 demonstrates that anything can happen, and it doesn’t take much change to tip the balance on a nine-member court. At some point, one of the conservative justices will depart — and while they certainly would prefer that their replacement be named by a Republican president, that might not be entirely within their control.
2. Jackson’s nomination also matters now
There’s been a lot of important conversation about the significance of having the first Black woman on the Supreme Court; that’s a terrific — and overdue — development. But we probably haven’t paid enough attention to the reality that we are now poised to have four female justices out of nine. I’m old enough to remember — actually, I’m old enough to have written about — the nomination of the first, Sandra Day O’Connor, in 1981. It took a dozen years for O’Connor to be joined on the bench by another woman, Ruth Bader Ginsburg. Four women don’t quite amount to Ginsburg’s dream — “when there are nine,” she liked to say when asked how many female justices would be enough — but it represents a sea change from female justice as oddity to female justice as unremarkable. It’s worth pausing to appreciate that, too.
In addition, justices, male or female, aren’t fungible. Even if they can be placed into broad categories of liberal or conservative, they bring different passions and different life experiences to the bench. Jackson’s experience as a criminal defense lawyer, member of the U.S. Sentencing Commission and trial court judge gives her a perspective different from that of her colleagues. It’s reasonable to imagine Jackson emerging as an ally of Justice Sonia Sotomayor, especially on criminal law issues, where Breyer and Justice Elena Kagan have been slightly more moderate. And, as I wrotethe other day, she also could emerge as another powerful voice in dissent, joining Sotomayor and Kagan in a forcefulness and passion that Breyer didn’t always display.
While Jackson, assuming she is confirmed, will be in the history books as the first Black female justice, the more immediate significance of her arrival at the Supreme Court might be as the only serving justice — and the first in decades — with significant experience representing criminal defendants and grappling with the consequences of the criminal justice system on communities of color.
3. The biggest risk to confirmation
Unless something entirely unexpected happens, Jackson will be sitting on the court when its October 2022 term begins. Every Democrat can be expected to vote to confirm Jackson, and three Republicans (Lindsey O. Graham of South Carolina, Susan Collins of Maine and Lisa Murkowski of Alaska) voted to put her on the appeals court just this past year. Especially because her record was flyspecked so recently, there aren’t likely to be surprises or controversy on the level of the Brett M. Kavanaugh confirmation hearings, or anywhere close.
4. The expected lines of attack
For Senate Republicans as a whole, there isn’t much attraction in appearing to go after a Black woman who’s going to be confirmed in any event and whose addition to the court won’t really alter its ideological balance. At the same time, the Senate Judiciary Committee, which will hold the hearings, has its share of GOP firebrands (demagogues might be a more fitting term) with presidential aspirations: Sens. Ted Cruz (Tex.), Josh Hawley (Mo.) and Tom Cotton (Ark.). For them, grandstanding against Jackson is a no-lose proposition.
What’s that going to look like? See her earlier confirmation hearings, especially the most recent. The Constitution protects criminal defendants’ right to counsel; Jackson’s representation of such defendants, including her two-year stint as a federal public defender, should be a mark in her favor. Not with this crowd. They’re going to ask about whether she had qualms about putting violent criminals back on the streets, and how she could have represented a Guantánamo detainee.
A hint of what’s to come? The Republican National Committee’s hit on Jackson. “Biden’s Pick Is A Radical, Left-Wing Activist Who Will Rubber Stamp His Failed Agenda,” the RNC’s news release blared. Oh, please. Among the counts against Jackson: She is “affiliated with multiple groups that raise questions about her judgment and how she would rule on the Supreme Court.” These concerning groups include — not making this up — the Harvard University Board of Overseers and the Cosmos Club. This smacks of a certain desperation.
5. My favorite Jackson factoid
She knits! To deal with stress. Me too, so I find this especially endearing. Awaiting confirmation to a district court judgeship — it hinged on whether President Barack Obama would win reelection — Jackson recalled in a 2019 talk, she “started so many scarves I could have outfitted a small army.”
6. My favorite Jackson case
No, it’s not the one from 2019 about Donald McGahn. In that case, Jackson, rejecting the Trump administration’s argument that the former White House counsel was absolutely immune from being called to testify before Congress, proclaimed, “Presidents are not kings.”
It’s a 2015 case in which Jackson ruled for a deaf D.C. man, William Pierce, imprisoned for 51 days, during which corrections officials did nothing to accommodate his disability, as the law requires, and ignored his repeated requests for a sign-language interpreter.
“This Court easily concludes that the District’s willful blindness regarding Pierce’s need for accommodation and its halfhearted attempt to provide Pierce with a random assortment of auxiliary aids — and only after he specifically requested them — fell far short of what the law requires,” Jackson wrote.
This is what I wrote about the case — and Jackson — this past year: “You can learn a lot about a judge by the way she handles the biggest-profile cases, involving those at the highest levels of government. But perhaps the more revealing test is how she applies the law to help those with the least power and the greatest need for justice.”
Ruth Marcus is deputy editorial page editor for The Post.
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