NEARLY TWELVE years after a Democratic president last seated a justice, President Joe Biden has nominated Ketanji Brown Jackson, an appeals-court judge with an impressive and eclectic career, to the Supreme Court. From the start Ms Jackson, 51, was a leading contender to succeed Stephen Breyer, the 83-year-old senior member of the court’s three-justice liberal bloc, who is retiring this summer. Her nomination was first announced via a presidential tweet on February 25th. It is both a historic and savvy selection.
All but three of the 115 justices who have served on the Supreme Court since 1789 have been white; all but five have been men. If confirmed by the Senate this spring, Ms Jackson will be the first black woman to don a justice’s robes. During his campaign for the Democratic nomination in 2020, Mr Biden pledged to name a black woman to the court “to make sure we in fact get everyone represented”. That was two years to the day before he picked Ms Jackson for a promotion to America’s highest court.
This is not the first time Ms Jackson has been considered for a Supreme Court vacancy. After nominating her to be a district-court judge in the District of Columbia in 2012 (she was confirmed in 2013), Barack Obama interviewed her for the seat that opened up when Justice Antonin Scalia died in 2016. That ill-fated nomination went to Merrick Garland, whom Senate Republicans refused even to consider; they held the seat open for more than a year before confirming Donald Trump’s nominee, Neil Gorsuch, in 2017. Early in the Biden administration, a game of musical chairs ensued: Mr Biden chose Mr Garland, then a judge on the DC circuit court of appeals, to be his attorney-general and, last April, nominated Ms Jackson to fill Mr Garland’s judgeship.
A unanimous voice-vote in the Senate confirmed Ms Jackson to her lower-court seat nine years ago. Her confirmation to the appeals court last year was narrower: 53-44, with three Republicans (Susan Collins, Lindsey Graham and Lisa Murkowski) joining all 50 members of the Democratic caucus to support her. The DC circuit, the nation’s second-most-powerful court, is often a springboard to the highest. It was the previous place of employment for a third of the current justices—Brett Kavanaugh, Clarence Thomas and the chief, John Roberts. When Ms Jackson took a seat there last June, speculation swirled that she would be next in line should Mr Biden get a Supreme Court pick.
In addition to her experience on the DC circuit, Ms Jackson shares other characteristics with potential colleagues. Like all but one of the sitting justices (Amy Coney Barrett, the most recent addition, being the exception), she was educated in the Ivy League. Ms Jackson graduated with high honours from Harvard University in 1992 and with honours from Harvard Law School, where she was an editor of the Harvard Law Review, in 1996. And like six of the justices, she served as a clerk on the Supreme Court early in her career. After two clerkships for lower-court judges, she clerked for Justice Breyer—her possible predecessor—during the 1999-2000 term.
Despite these credentials, Ms Jackson bucks high-court convention in notable ways. She was a federal public defender from 2005 to 2007—a rarity among federal judges, for whom prosecutorial experience is far more common, and a résumé item that would be a first for a Supreme Court justice. A decade ago, Ms Jackson served as vice chair of the US Sentencing Commission, where she helped revise sentencing guidelines that imposed harsh penalties for crack cocaine that disproportionately affected African-Americans. The injustice of excessive sentences was not an abstraction for her: when she was a teen, her uncle was sentenced to life in prison for a minor drug crime under a “three strikes” law; he was granted clemency three decades later.
Recent Supreme Court nominations have been pitched partisan battles. There is little reason to expect otherwise with Ms Jackson’s selection. Mitch McConnell, the Republican Senate minority leader who helped thwart Mr Garland’s confirmation in 2016 (and shepherded Mr Trump’s three nominees to the court), called Ms Jackson “the favoured choice of far-left dark-money groups that have spent years attacking the legitimacy and structure of the court itself”. He added that he looked forward to “carefully reviewing” her nomination. Lindsey Graham, one of the three Republican senators who voted to support Ms Jackson’s ascent to the appeals court last year, criticised Mr Biden for bowing to the “radical left” because he had not nominated Mr Graham’s favoured candidate, J. Michelle Childs. “The Harvard-Yale train to the Supreme Court continues to run unabated,” he tweeted.
Though Ms Jackson’s nomination has elicited charges of elitism, a bigger talking point seems to be her purported radicalism. Ronna McDaniel, chair of the Republican National Committee, issued a statement calling her “a radical, left-wing activist who would rubber-stamp Biden’s disastrous agenda”. This characterisation is hard to square with Ms Jackson’s record as a judge, which has involved few cases involving contentious political or cultural matters. This week, she supported an opinion written by Neomi Rao, a Trump appointee, which sided with a power plant in Connecticut in a dispute with the Federal Energy Regulatory Commission.
One ruling Ms Jackson wrote as a district-court judge may be fodder for Republican scepticism when confirmation hearings take place this spring. Two years ago in Committee on the Judiciary v McGahn, she ruled that Don McGahn, Mr Trump’s White House counsel, had to testify before the House Judiciary Committee investigating Russian interference in the 2016 election. “Presidents are not kings,” she wrote of Mr Trump’s order to Mr McGahn, and “do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control.” In line with Ms Jackson’s ruling, Mr McGahn testified before the House Judiciary Committee last year as to whether Mr Trump may have obstructed a probe into Russian election-meddling.
Despite the Democrats’ razor-thin edge in the Senate, Ms Jackson’s confirmation is all but assured. Mr Biden has successfully seated dozens of lower-court judges with no defections from the Democrats’ caucus. The main question is whether some Republicans will join them to confirm Ms Jackson—and if so, how many. A family connection may soften some Republican opposition to Ms Jackson’s nomination: her husband’s twin brother is married to the sister-in-law of Paul Ryan, the Republican former speaker of the House and vice-presidential nominee in 2012. Mr Ryan tweeted that, despite their differing political perspectives, he had nothing but “praise for Ketanji’s intellect, for her character, and for her integrity”.