The Election of Judge Jackson to the US Supreme Court: America’s Way of Choosing its Federal Judiciary
On 25 February 2022, President Joe Biden nominated Ketanji Brown Jackson to a newly-vacated lifetime seat in the US Supreme Court, which is the highest tribunal and the third branch (the other two being the executive and legislative branches) of the federal government in America. He was seeking to replace Associate Justice Stephen Breyer, a President Clinton nomination and the seniormost liberal judge since 2020, who had announced his retirement, which he didn’t have to, in letter to the President on 27 January 2022. Back in 1994, Breyer was elected with strong bipartisan support, whereas on the day of Jackson’s own election an evenly-divided US Senate is expected to vote along strictly partisan lines.
Jackson is the first Black female to be nominated to the US Supreme Court, which currently has a 6-3 conservative majority, a 6:3 male: female ratio, and includes an African-American and a Latina judge. Other Black female judges had also been considered for the vacancy, including Leondra Kruger, Associate Justice in the Supreme Court of California, and J. Michelle Childs, a Judge on the US District Court for the District of South Carolina, before Biden settled on Ketanji Jackson.
Jackson is the latest in a series of African-American women to make it to the upper echelons of the American legal system. The first ever Black female judge, Jane Matilda Bolin, served as a Domestic Relations Court judge in New York City from 1939 to 1978, while the first Black woman Federal District Court judge was Constance Baker Motley. Motley was nominated by President Johnson to the US District Court for the Southern District of New York in January 1966, and eventually confirmed by the US Senate in August 1966, despite delaying action by the Chair of the Senate Judiciary Committee, James Eastland (Democrat-Mississippi), a segregationist, who objected to her previous role as a civil rights legislator for the NAACP.
Jackson, the daughter of public-school teachers, both college graduates, was born in Washington, DC, in 1970, and raised in Miami, Florida. She graduated from Harvard-Radcliffe College in 1992 (AB, magna cum laude) and Harvard Law School in 1996 (JD, cum laude). She is married to Dr. Patrick Jackson, a white general surgeon, who is associated with MedStar Georgetown University Hospital in Washington, DC, and has two daughters. Her “best” husband, as he describes him, has family connections that cross the political divide, his twin brother being married to the sister of the former Republican speaker of the House of Representatives, Paul Ryan.
Jackson clerked for Associate Justice Breyer in 1999, and has worked in private practice, as a federal public defender, and sat on the seven-member US Sentencing Commission from 2010 to 2014. She served, as an Obama nominee, on the US District Court for the District of Columbia from 2013 until 2021. On 14 June 2021, Jackson was confirmed by the US Senate, in a 53-44 vote, for the US Court of Appeals for the DC Circuit. On that occasion, she had the support of three Republican Senators, including Lindsey Graham, who has now turned against her. This happened to be the same court to which Julia Cooper Mack had been appointed by President Ford in 1975, as the first Black woman ever to sit on a federal appellate court.
Jackson’s nomination has been criticised in conservative circles, despite her legal experience, as yet another example of ill-considered “affirmative action” and tokenism. She may be Black, but she just isn’t the conservative kind of Black, as exemplified by Justice Clarence Thomas, who took over from Thurgood Marshall in 1991. Marshall had been nominated in 1967 by President Johnson as the first African-American Associate Justice in the Supreme Court. Fox News talk show host Tucker Carlson displayed lingering doubts about her intellectual abilities, despite her academic credentials, and even though a Supreme Court Justice does not have to meet any qualification standards, and was keen to find out her LSAT (Law School Admission Test) scores, which are meant to be confidential. Besides, it is also payback time for the Democrats’ “ill-treatment” of Justice Brett Kavanaugh, during his confirmation in 2018, when he was accused of “sexual assault” by several women but managed to be confirmed anyhow, in a 50-48 Senate vote.
The Senate Judiciary Committee hearings, from 22 March to 24 March, included two “marathon sessions” and were described as gruelling and at times confrontational, where “grandstanding” Republican Senators targeted what they perceived to be Jackson’s weak points. Josh Hawley (Republican-Missouri), a product of Yale Law School, had particular gripes with her lenient sentencing of child pornography offenders. In particular, he did not approve of her sentencing in the case of US v Hawkins in 2013, when she gave 18-year-old high school senior Wesley Hawkins just three months of federal prison time, in a case where the prosecutor had recommended 24 months, which was followed by 73 months of supervision in the community.
Senator Marsha Blackburn (Republican-Tennessee) had even more fundamental concerns, about whether Jackson even knew how to define a woman, presumably to test her views on the concordance between sex assignment at birth and gender identity later in life. Further searching exploration of Jackson’s views was undertaken by another Harvard Law School graduate, Ted Cruz (Republican-Texas). Cruz followed a line of “absurd” questioning, according to his former teacher, Professor Alan Dershowitz, which appeared to confuse immutable characteristics, such as race, with characteristics that can be changed, such as gender identity. Cruz and others also questioned her at length about one a pet conservative dislike- the concepts of Critical Race Theory.
Senator Lindsey Graham (Republican-South Carolina), a University of South Carolina School of Law alumnus, just could not contain his rage as he questioned Jackson about her work on behalf of Guantanamo bay detainees and briefly walked out to cool himself down. The performances of the aforesaid Senators will undoubtedly endear themselves to their conservative core of voters and equally dismay America’s liberal/progressive citizens. Jackson’s performance was variously described by her supporters as dignified, balanced, and measured, while her detractors considered it weak and evasive, on issues such as court packing, or adding to the numbers of Supreme Court Justices. She came across as a nice person, in contrast with some of her more vociferous detractors, who were criticised for their aggressive and rhetorical questioning, withering sarcasm, and inappropriate behaviour, which at times included overrunning their allocated time-slots.
The latest Supreme Court confirmation hearing once again demonstrates the uncompromising politicisation of the federal judiciary, ever since 1990, in which nominations for vacant positions are guided not just by candidates’ sentencing records but also by their ideological leanings. It is now customary for Republican Senators to vote for conservative nominees, while Democratic Senators vote for their liberal counterparts. There are many legal and constitutional issues where there is clear divide between liberals and conservatives, ranging from voting rights, retributive justice (the death penalty), reproductive rights (abortion), trans-gender rights, gun control, and campaign finances, among others, where the Court’s decision-making may depend more upon the balance between judges subscribing to one or other of binary choices in the matter rather than upon the actual merits and demerits of the case being considered.
Jackson is expected to be elected 116th Associate Justice of the US Supreme Court on 4 April, along strictly partisan lines, in an evenly- balanced Senate, with the Vice-President’s deciding vote in her favour giving her a majority of one (51-50, rather than 60-40 once required), unless two frequently dissenting Democratic Senators and a few wavering Republicans chose to vote otherwise and thereby change the balance of votes. The situation today is in marked contrast to Justice Breyer’s near-unanimous selection, by a margin of 87-9 in the US Senate, in 1994, in yet another reminder of the widening and deepening split in American politics.
Ashis Banerjee