Biden creates Supreme Court buzz with judicial nominees

President Biden on Tuesday nominated Ketanji Brown Jackson to fill Merrick Garland’s open seat on the D.C. Circuit Court of Appeals in his first slate of judicial nominations, instantly creating buzz about Jackson’s prospects for a potential Supreme Court nomination down the line.

If confirmed by the Senate, Jackson will be one of only a handful of Black women on the nation’s appellate benches, likely securing her a spot on any shortlists for the high court given Biden’s pledge to nominate the first Black female justice.

Jackson, who’s currently a federal district court judge in D.C., was previously considered for the Supreme Court in 2016 when former President Obama was searching for a nominee following the death of Justice Antonin Scalia.

Though she had been a district court judge for just three years at the time, Jackson made Obama’s shortlist and was reportedly among the select few who met with the president. Ultimately, though, Garland was nominated for Scalia’s seat, only to be blocked by Senate Republicans who refused to consider his nomination during a presidential election year.

Jackson was among a diverse slate of 11 judicial nominees who were announced by the White House on Tuesday, and it didn’t take long for legal observers to begin speculating about her next promotion.

“I think there’s no question that Judge Jackson brings a tremendous record as both a lawyer and a judge, in addition to being a Black woman, which the court has never had. The Supreme Court also has not had a lawyer who represented criminal defendants since Thurgood Marshall, and so being a public defender she also would bring that important perspective to the court,” said Christopher Kang, cofounder of the progressive group Demand Justice and a former deputy counsel in the Obama White House.

“There’s no question that people are right to be talking about her for the Supreme Court, but I think for today at least [they should] pause for a moment to reflect on how important it is that she’s been nominated for the D.C. Circuit,” Kang added.

With Tuesday’s announcement, Jackson is positioned to fill the seat vacated by the current attorney general on the second most important court in the country, where a disproportionate number of current and former Supreme Court justices served immediately before being elevated to the high court.

The White House is pushing Jackson’s nomination as part of its effort to diversify the federal bench, in terms of both demographics and professional background.

“The nominees announced today reflect @potus commitment to highest standards for the qualifications, integrity, and fairness–while also representing a paradigm shift in the types of people who can see themselves on the federal bench,” Jen Psaki, the White House press secretary, said in a tweet.

Progressive groups have been pushing Biden and Senate Democrats to make the judiciary a top priority after years of watching former President Trump’s success at filling the courts with young conservative jurists.

Liberal activists are now arguing that the administration needs to counter Trump’s legacy by pushing its nominees through the Senate at a rapid pace, but also by selecting judges who will add diversity to a judiciary that is dominated by former prosecutors and veterans of large corporate law firms.

By contrast, there’s a glaring disparity in the number of federal judges who have served as public defenders, civil rights lawyers, labor advocates or consumer rights attorneys. Progressives say that imbalance has helped foster a landscape where the law is increasingly being interpreted in favor of the wealthy and powerful.

“Thanks to the tireless work of activists and organizers around the country who have spent years sounding the alarm about the ways the judiciary has harmed our country’s most vulnerable people, we are now seeing the nomination of judges who represent the very best of the legal profession,” Molly Coleman, executive director of the progressive legal group People’s Parity Project, said in a statement.

“By announcing this historic slate of nominees this early in his administration, Joe Biden is showing that he is not going to stand by and watch as the judiciary undermines progress in this country,” she added.

For those pushing Biden to approach the judiciary differently from his predecessors, Jackson is the ideal candidate for such a high-profile seat.

Before her confirmation for the D.C. District Court in 2013, Jackson served on the U.S. Sentencing Commission starting in 2010, where she helped implement sentencing reforms that closed the disparity in penalties between crack and powder cocaine offenses.

Before joining the Obama administration, Jackson worked in both private practice and the public sector, including a stint at the federal public defender’s office in D.C.

After graduating from Harvard Law School in 1996, Jackson clerked for Supreme Court Justice Stephen Breyer, who at 82 is the oldest of the three liberal justices and has been facing calls from some Democrats to retire to clear the way for a younger appointee while Biden is in office.

As a judge during the Trump era, Jackson presided over several high-profile cases involving the former president and his administration. Her most high-profile decision came in December 2019, when she ruled that former White House Counsel Don McGahn would have to comply with a House subpoena seeking his testimony.

In a 120-page opinion, Jackson rejected the Trump White House’s expansive legal arguments claiming sweeping executive authority that empowered them to order McGahn to disregard the subpoena.

“Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings,” Jackson wrote. “This means that they do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control. Rather, in this land of liberty, it is indisputable that current and former employees of the White House work for the People of the United States, and that they take an oath to protect and defend the Constitution of the United States. Moreover, as citizens of the United States, current and former senior-level presidential aides have constitutional rights, including the right to free speech, and they retain these rights even after they have transitioned back into private life.”

Jackson has been confirmed unanimously by the Senate twice in her career, once for the district court seat and once for her job at the sentencing commission. It’s unclear if Republicans will oppose her this time around.

For their part, Democrats are vowing to prioritize Jackson and the other judicial nominees after watching their GOP counterparts confirm Trump’s judges at a near-record clip over the past four years.

“The Senate will work quickly to confirm President Biden’s superb and accomplished judicial picks,” Senate Majority Leader Charles Schumer (D-N.Y.) said in a statement. 

“America is so much better when our rich diversity is reflected in every aspect of society, especially our justice system,” he said. “We will have hearings and confirm judges to fill the growing number of vacancies on the federal bench and significantly mitigate the influence of Donald Trump’s unqualified, right-wing judges.”