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March 01, 2022

With the nomination of Judge Ketanji Brown Jackson, President Joe Biden made a choice that is at once superb and safe.

Judge Jackson is a safe choice because she had only recently been confirmed for the United States District Court for the District of Columbia by a vote of 53 to 44 with the support of Senators Lindsey Graham of South Carolina, Susan Collins of Maine and Lisa Murkowski of Alaska. While hypocrisy is no bar to some politicians changing their minds about an issue (notably Senator Graham), it is unlikely here. And she is a safe choice because she is a moderate, who fits well within the usual parameters for a Democratic president. Despite Senator Mitch McConnell’s efforts to portray her as a leftist, the candidate of the “far-left dark-money groups,” he says, she is not.

This caricature, of course, is a familiar one. McConnell wants to portray the three justices appointed by Democrats as “left;” the media paints them as liberals. These labels reflect the divisions in American politics, not reality. More liberal than what? More left than whom?

To label Judge Ketanji Brown Jackson inferior reflects more on the speaker’s biases; to label her far left, reflects their ignorance.

The fact is that the Democrats have consistently appointed moderate candidates to the Supreme Court. This is so even as to Justice Ruth Bader Ginsburg, whose record on the D.C. circuit prompted the New York Times columnist Linda Greenhouse to call her a “judicial restraint liberal,” respectful of precedent and the views of her colleagues. Likewise, Justice Sonia Sotomayor’s record on the Second Circuit was also that of a cautious jurist, solidly in the mainstream of the Second Circuit on a court roughly evenly split between Democratic and Republican appointees (as the Brennan Center reported in 2009). Justice Elena Kagan was confirmed by a vote of 63 to 37 (supported by five republicans), whose writings were hardly radical. And finally, there is no more prominent moderate than Justice Stephen Breyer, for whom Judge Jackson clerked. He is above all the pragmatist, interested in effecting compromise, wherever possible.

Not so with the appointees of former President Donald Trump, whose positions on substantive matters like abortion, affirmative action, the delegation of power to federal agencies, presidential authority, are hardly mainstream and worse, coexist with their lack of respect for precedent. (I wrote about their work in the short time they have been on the Court here.)

Indeed, Judge Ketanji Brown Jackson's record is in the tradition of Merrick Garland who is a moderate, and her mentor, Justice Breyer. It was no surprise that she was shortlisted for the Court after Justice Antonin Scalia died, along with Garland. Nor is it a surprise that she has been supported by prominent conservatives like Judges William Pryor and J. Michael Luttig.

As for her qualifications, they are superb — she graduated Harvard Law School, with honors, clerked for Judges Patti Saris and Bruce Selya and then Justice Breyer. Those who hint darkly that she is an inferior candidate, an “affirmative action” nominee should look in the mirror. The caricature reflects their biases, not the truth.

In addition to her stellar credentials, she would make an important contribution to the court because of the diversity of her background. While several of her colleagues went from the academy to the bench, with stints as a prosecutor, she was an appellate public defender, vice chair of the United States Sentencing Commission, then district court judge, and court of appeals judge. Of course, some Republicans are suggesting that her judicial record is somehow too thin to justify this appointment, also a red herring. She has had more judicial experience than Clarence Thomas, John Roberts, Elena Kagan and Amy Coney Barrett had.

Diversity of background matters. When Justice Thurgood Marshall retired from the bench, Justice Sandra Day O’Connor reported that his presence on the Court changed the conversation in the judge’s deliberations, not simply because of his race, but because of his background. “At oral arguments and conference meetings, in opinions and dissents, Justice Marshall imparted not only his legal acumen but also his life experiences, constantly pushing and prodding us to respond not only to the persuasiveness of legal argument but also the power of moral truth.”

To label Judge Ketanji Brown Jackson inferior reflects more on the speaker’s biases; to label her far left, reflects their ignorance.