Biden to nominate Ketanji Brown Jackson to the Supreme Court
February 25, 2022 8:29 AM   Subscribe

Biden to nominate Ketanji Brown Jackson to be first Black woman to sit on Supreme Court (CNN). Jackson has broad experience, including work as a member of the US Sentencing Commission and as a federal public defender.

Jackson previously clerked for retiring Supreme Court Justice Stephen Breyer.

Potential Supreme Court pick is one of the finest judges I've seen, CNN senior legal analyst Elie Honig

You can read a recent opinion by Judge Jackson online: Former White House counsel Don McGahn must testify to House impeachment investigators.
posted by kristi (56 comments total) 26 users marked this as a favorite
 
On a personal note, I'm really excited about her nomination. She seems exceptionally well qualified, and I really appreciate the respectful but no-nonsense tone of that McGahn legal opinion.

It's hard to know exactly how the Senate confirmation process with go (there are obvious predictable slams from the usual suspects, but those may not ultimately matter) - but it's encouraging to note that "Sens. Lisa Murkowski of Alaska, Lindsey Graham of South Carolina and Susan Collins of Maine all voted for Jackson last summer when she was confirmed as a circuit court judge on the US Court of Appeals for the District of Columbia, the second most important court in the country."

I barely knew anything about Jackson before today, but I'm a fan. Here's hoping she gets confirmed quickly!
posted by kristi at 8:34 AM on February 25, 2022 [6 favorites]


I was bracing myself for Michelle Childs and am so happy I was wrong. She seems awesome and it's past time to get more defenders on the bench.
posted by Mavri at 8:39 AM on February 25, 2022 [9 favorites]


What would be a great follow-up is adding some seats to the Supreme Court so that this incredible judge is not reduced to just writing dissenting opinions for the rest of her career.
posted by delicious-luncheon at 8:42 AM on February 25, 2022 [51 favorites]


If memory serves me correctly, there's precedent and tradition that the number of SCOUTS justices equal the number of Circuits, and the court has been expanded in the past as the number of circuits grew with westward expansion.

There are current 13 circuits of the US Courts of Appeals.
posted by Gelatin at 8:46 AM on February 25, 2022 [17 favorites]


Can Manchin put his foot down and derail this?
posted by acb at 8:49 AM on February 25, 2022 [2 favorites]




Apparently, Jackson is related to former House Speaker Paul Ryan by a couple of marriages: her husband’s twin brother is married to Paul Ryan’s wife’s sister (take a sec to work through the relationships!). No reflection on the soon to be Justice, of course - just not the connection I was expecting.
posted by fortitude25 at 9:03 AM on February 25, 2022 [5 favorites]


Can Manchin put his foot down and derail this?

Short answer yes with an “if,” long answer no with a “but.”

Yes, if every Republican senator voted as a block again.

No, it’s an up or down vote, and does not require cloture thanks for the Republicans, but there’s no point in holding out for concessions, since a confirmation is not a bill you can attach a rider to.
posted by pwnguin at 9:08 AM on February 25, 2022 [7 favorites]


~ What would be a great follow-up is adding some seats to the Supreme Court...
~ If memory serves me correctly, there's precedent and tradition that the number of SCOUTS justices equal the number of Circuits...There are current 13 circuits of the US Courts of Appeals.


Not gonna happen, folks, so expunge that particular fantasy from your minds. Even if Biden did try to expand the court, those extra seats would sit vacant, due to various political machinations on the part of Republicans, and the lack of solid support for it among his own party.
posted by Thorzdad at 9:15 AM on February 25, 2022 [4 favorites]


I am super pumped about a public defender on SCOTUS. Hoping this goes through as expected, but you never know these days.
posted by splitpeasoup at 9:18 AM on February 25, 2022 [5 favorites]


Even if Biden did try to expand the court, those extra seats would sit vacant...

-----------------

"[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the supreme Court ... "

Back when Obama was president, I personally think he dropped the ball in appointing Merrick Garland to the court. An argument could have been made that the Senate, under Mitch McConnell had either abandoned their duty to advise the president, or alternately, had implicitly consented by not voting down the nomination.

Would it have been a constitutional crisis? Perhaps, but George W Bush opened the door wide for the expansion of Executive power, and it would have been a battle of messaging about whether Obama had overreached, or McConnell had gummed it all up.

If the court were expanded, the nominations could be made. It's then up to the Senate to actually vote down appointees, and after two or three consecutive refusals to nominate, it just comes down to getting legal experts to go on TV to testify that these nominees were in fact qualified, and not ideological choices. "If not these paragons of legal theory, then who COULD be qualified?"

From there, it's just messaging that the constitution makes it clear that appointment is an Executive power, that the Senate's role is fundamentally advisory, and the Senate's intransigence is attempting to wrest a power from the Executive branch to the Legislative.

I know this is a bit of Sorkin-esque fairytale thinking, but given the ridiculous un-Constitutional bullshit that Republicans pull off on the regular, I don't see why Democrats should continue to just shrug their shoulders and pretend nothing can get done so long as the Republicans say "no."
posted by explosion at 9:41 AM on February 25, 2022 [10 favorites]


Not gonna happen, folks, so expunge that particular fantasy from your minds.

I agree it's not going to happen, but I disagree with the idea of expunging the ideas that might save us. If we don't talk about them and advocate for them, then we've accepted that the 6-3 court is going to gut everything good about this country in the coming decades. Better to fight and lose than never fight at all. This whole "real talk don't get any wild ideas" approach to politics is going to doom us all.
posted by Mavri at 9:42 AM on February 25, 2022 [36 favorites]


While we're entertaining pleasant hypotheticals, I kind of wish Biden would try to push through FDR's (admittedly failed) plan to pack the court: Enact a rule that whenever a sitting justice reaches the age of 70 and refuses to retire, the president is allowed to seat an additional justice to basically offset their vote.

After Breyer retires, the two remaining judges over the age of 70 will be Thomas and Alito, so immediately this would go a long way towards evening up the judiciary playing field.
posted by Atom Eyes at 9:53 AM on February 25, 2022 [14 favorites]


Good. So glad it wasn't awful, awful Michelle Childs. Jackson is a fantastic choice.
posted by Gadarene at 10:04 AM on February 25, 2022 [1 favorite]


This is a great choice. Has there ever been a public defender justice before?
posted by Mitheral at 10:08 AM on February 25, 2022 [4 favorites]


Enact a rule that whenever a sitting justice reaches the age of 70 and refuses to retire, the president is allowed to seat an additional justice to basically offset their vote.

How old again was Ruth Bader Ginsburg when she died?
posted by y2karl at 10:13 AM on February 25, 2022 [2 favorites]


(While I, too, find expanding the number of justices to be an intriguing idea, might I encourage people to focus most of the conversation on this fantastic nominee? Maybe we could discuss this interesting profile of Jackson at SCOTUSblog, or that, as the Washington Post points out, she would be the first public defender on the modern court. Or even this nearly 10-year-old profile from the Blog of LegalTimes. I'd love to hear what you all find interesting about Jackson herself.)
posted by kristi at 10:30 AM on February 25, 2022 [21 favorites]


How old again was Ruth Bader Ginsburg when she died?

Sonia Sotomayor is who people think Ruth Bader Ginsburg was, fwiw. And Ginsburg absolutely should have retired when Obama was in office; that's not even in question.
posted by Gadarene at 11:05 AM on February 25, 2022 [17 favorites]


This is a great choice. Has there ever been a public defender justice before?

Not since Thurgood Marshall, I believe.
posted by Gadarene at 11:06 AM on February 25, 2022 [2 favorites]


A truly inspiring woman. Just about as much of an opposite as people can be is her and Kavanaugh. Maybe we'll get an RBG+Scalia out of it! In any event, ABJ's legacy may just turn out to be a reminder of Harriet Miers.

Apparently, Jackson is related to former House Speaker Paul Ryan by a couple of marriages: her husband’s twin brother is married to Paul Ryan’s wife’s sister (take a sec to work through the relationships!).

She's his sister-in-law's sister-in-law, or: in Kardashian terms.
posted by rhizome at 11:08 AM on February 25, 2022 [1 favorite]


Not gonna happen, folks, so expunge that particular fantasy from your minds.

I agree that expanding SCOTUS is vanishingly unlikely now, but the Democrats should use their legendary message discipline (ha, ha) and start pushing the Overton window so it could happen eventually.
posted by Gelatin at 11:09 AM on February 25, 2022 [5 favorites]


Also, for those worrying about obstinate Democrats rejecting the nomination, there's evidence that that might not happen: Manchin and Sinema have hurt Biden's agenda, but haven't voted against a court nominee (Tierney Sneed, CNN)
posted by kristi at 11:10 AM on February 25, 2022 [3 favorites]


Just about as much of an opposite as people can be is her and Kavanaugh. Maybe we'll get an RBG+Scalia out of it!

Whoa now -- let's keep this thread clean. We shouldn't be wishing friendship with Kavanaugh on anyone.
posted by paper chromatographologist at 11:20 AM on February 25, 2022 [20 favorites]


Can Manchin put his foot down and derail this?

Yes, but "...senators such as West Virginia’s Joe Manchin and Arizona’s Kyrsten Sinema have demonstrated a willingness to buck their party, but since Biden has become president, these center-right Democrats have balked at exactly zero judicial nominees from the Biden White House. Literally, none.

It's difficult to imagine the duo breaking the trend now."
posted by Mr.Know-it-some at 11:31 AM on February 25, 2022 [4 favorites]


Back on topic, Ketanji Brown Jackson is a great choice, and I hope she's a problem for the Republicans (including explaining their likely opposition votes) for decades to come.
posted by Gelatin at 11:44 AM on February 25, 2022 [7 favorites]


The ever-reliable Lindsay Graham is already making noises about how objectionable it is that she's from the "Harvard-Yale train." Maybe someone will tell him where Gorsuch and Kavanaugh went to law school, but then again, of course he already knows.
posted by holborne at 12:27 PM on February 25, 2022 [10 favorites]


her husband’s twin brother is married to Paul Ryan’s wife’s sister

I know Washington is a small company town but I pondered this string of connections --- spouse's sibling's spouse's sibling's spouse -- as it applies to my own family, and I cannot think of a situation where the two people at either end of the chain have ever even met.

The closest I can think of is when some folks on my mom's side found themselves with a pilot on a tiny plane in the Caribbean who was also Canadian and indeed from the same medium-sized city in Canada. They chatted and learned that the passengers, a married couple, were being flown by the husband's brother's ex-wife's sister's ex-husband's sister's daughter. (The two in bold are my parents.) They would never have met before and I am certain never have since.
posted by ricochet biscuit at 12:28 PM on February 25, 2022 [4 favorites]


then again, of course he already knows

Of course he knows. It's a category error to consider any statement by a Republican as made in good faith. The bad faith simply shows their contempt for the opposition and the not-at-all "liberal" media that will reliably print their garbage statements verbatim. Republicans like Graham and McConnell revel in the bad faith -- it shows they have the power to lie with no consequences at all.
posted by Gelatin at 12:35 PM on February 25, 2022 [8 favorites]


Not sure where on earth you got the idea that I thought Republicans ever acted or spoke in good faith, but ok.
posted by holborne at 1:07 PM on February 25, 2022


I'm saying the bad faith is the point.
posted by Gelatin at 1:22 PM on February 25, 2022 [1 favorite]


Obama said this is inspirational for his daughters.

There was a senator whose name escapes me who did the whole “diversity hire” thing when we were reminded that Biden promised to nominate a black woman. The internet never forgets and people reminded him that he had no problem with Trump’s promise to nominate a woman, and that he also called Barrett’s nomination inspirational for his daughters.

I don’t know if Obama was referencing that but it made me a smirk a bit.
posted by girlmightlive at 1:25 PM on February 25, 2022 [10 favorites]


This will never happen until Biden nukes the filibuster. We've been down this road before, just a few years ago.
posted by hairless ape at 1:27 PM on February 25, 2022


This will never happen until Biden nukes the filibuster.

The President of the United States has absolutely no power or ability to "nuke the filibuster." The Senate, per the Constitution, makes its own rules, the President notwithstanding. The Senate could nuke the filibuster, but at least for the present, Kristen Sinema says no.
posted by Gelatin at 1:30 PM on February 25, 2022 [7 favorites]


This may very well happen ("this" being "Jackson gets confirmed, and even quickly") regardless of the filibuster, because, as noted above, three Republican Senators already voted to confirm this very person when Biden nominated her to the court just below the Supreme Court, and Manchin and Sinema have both voted to confirm all of Biden's judicial nominees so far.

I am as exasperated as anyone at the behavior of Manchin and Sinema, and especially the entire Republican faction, when it comes to legislation, but judicial nominees (including to the Supreme Court) are a different thing, rallying different levels of opposition, and much more importantly, not requiring cloture, and so not requiring 60 votes. 50 votes plus the Vice President Harris tie-breaker is all we need.
posted by kristi at 1:36 PM on February 25, 2022 [2 favorites]


This may very well happen ("this" being "Jackson gets confirmed, and even quickly") regardless of the filibuster, because, as noted above, three Republican Senators already voted to confirm this very person when Biden nominated her to the court just below the Supreme Court, and Manchin and Sinema have both voted to confirm all of Biden's judicial nominees so far.

Also, Republicans already nuked the filibuster for SCOTUS appointees, to benefit themselves. Republicans can't block Jackson's appointment to the Court.
posted by Gelatin at 1:40 PM on February 25, 2022 [15 favorites]


know Washington is a small company town

No, *Ivy League grads* are an artificially reduced pool, although that somewhat incestuous pool is overrepresented in all three branches of government at the higher levels.

Your perennial reminder that DC is a place, it is not the same as the government and plenty of us have nothing to do with it.
posted by aspersioncast at 2:37 PM on February 25, 2022 [3 favorites]


Nice! She was my pick (in my supreme court fanfic) for a Biden nominee. :) I was dealing with my feelings in 2020, during the ACB thing, is why I have supreme court fanfic.
posted by which_chick at 2:43 PM on February 25, 2022 [4 favorites]


husband's brother's ex-wife's sister's ex-husband's sister's daughter

LS: So what does that make us?

DH: Absolutely nothing.
posted by DeepSeaHaggis at 4:45 PM on February 25, 2022 [6 favorites]


Republicans can't block Jackson's appointment to the Court.

No reason they can’t, but with the court leading 6-3 this way, the optics of fighting a black female nominee probably gives them pause.
posted by Brandon Blatcher at 6:02 PM on February 25, 2022 [1 favorite]


They literally can't block her confirmation, if all 50 Dems are able to be present and vote to confirm. Only 50 votes plus the Harris tie-breaker are needed, so unless a Dem is unable to vote (out sick or something), or Manchin or Sinema votes against (possible, but unlikely, as noted multiple times above), the Republicans cannot block her confirmation.
posted by kristi at 6:44 PM on February 25, 2022 [5 favorites]


three Republican Senators already voted to confirm this very person

Non-sequitur when you're talking about Republicans. Logic need not apply, and in fact it's better if it doesn't. Still, I don't think they have the horsepower to stop it. I would not be surprised if they vote against in a solid bloc anyway, because to their base, the Supreme Court is everything. They can't concede an inch in public even though they know it's futile.
posted by ctmf at 7:22 PM on February 25, 2022 [1 favorite]


Graham is already weasling about the Harvard-Yale pipeline (I agree that it would be nice to get people from other laws schools, but that's about 10th on my lwishlist); Sinema and Manchin are yakking abut taking their "advise and consent" role seriously, as is Romney and Collins is hemming and hawing. I'm hope all of that is for show.
posted by etaoin at 8:15 PM on February 25, 2022 [1 favorite]


fwiw...
Statements from Cato Scholars on the Nomination of Judge Ketanji Brown Jackson - "There are plenty of reasons to celebrate Judge Jackson's nomination, and one of the most important is the professional diversity she would bring to the Supreme Court. Unlike eight of the nine sitting Justices, Judge Jackson has never served as a prosecutor or other courtroom advocate for government, and she would be the first Justice since Thurgood Marshall with criminal defense experience. As Cato's research has shown, the federal judiciary is wildly imbalanced in favor of former government lawyers versus former public defenders and public interest lawyers. Some of the most important cases the Supreme Court hears involve individuals squaring off against police, prosecutors, and other public officials in criminal and civil rights cases. The government's perspective is already well‐​represented among the Justices in those cases—a Justice Jackson would provide a new and refreshing point of view."
posted by kliuless at 2:02 AM on February 26, 2022 [11 favorites]


And Ginsburg absolutely should have retired when Obama was in office; that's not even in question.

Please stop saying this. It's not a given. It's not even what many of us wanted, and I find it personally insuluting towards all the incredible good Ginsburg did on the bench.

And I've never heard anyone insist that a man on the court should have retired.
posted by tiny frying pan at 5:39 AM on February 26, 2022 [8 favorites]


We're here because of the pressure on Breyer to retire before midterms.

It's okay two be of two minds on a thing. To love and respect all that RBG did in the past... And also believe her ego and hubris doomed us to bleak future.
posted by PissOnYourParade at 6:48 AM on February 26, 2022 [9 favorites]


People have been loudly insisting that Breyer retire since Biden won the election. RBG was an impressive woman who made a terrible mistake. The danger of this 6-3 court was always more important than her reasons for staying on the court.
posted by Mavri at 7:02 AM on February 26, 2022 [8 favorites]


And I've never heard anyone insist that a man on the court should have retired.

Um.
posted by Gadarene at 7:38 AM on February 26, 2022 [3 favorites]


RBG’s great sin was failing to predict, apparently before the 2014 midterms, that a disease she had beaten repeatedly would finally kill her in late 2020, at which time a fascist game-show host would be in charge. (Do you really think Mitch & Co. would have let Obama pick a suitable replacement for her? In spite of all evidence to the contrary?)

Lifetime appointments are ridiculous, yes. But the time she was terminal, she was hanging on for your sakes. That’s hardly the height of selfishness.
posted by armeowda at 8:47 AM on February 26, 2022 [6 favorites]




The February 25th Letters from an American by historian Heather Cox Richardson highlights analysis by University of Texas law professor Steve Vladeck:
If she is confirmed, Jackson will be the 116th Justice in American history, University of Texas law professor Steve Vladeck pointed out on Twitter. She will be the eighth who is not a white man; she will be the sixth woman.
and
Anticipating criticism suggesting that Jackson’s judicial experience has been brief, Vladeck also compiled a chart of the judicial experience of all Supreme Court justices since 1900. The information showed that Jackson’s 8.9 years of prior judicial experience is more than four of the justices currently on the court—Clarence Thomas, Chief Justice John Roberts, Elena Kagan, and Amy Coney Barrett—had combined. It's also more experience than 4 of the last 10 justices had at their confirmations, or 9 of the last 17, or 43 of the 58 appointed since 1900. (emphasis mine)
posted by kristi at 10:57 AM on February 26, 2022 [14 favorites]


And I've never heard anyone insist that a man on the court should have retired.

Then you haven't been listening to any of the conversation around Breyer (y'know, the guy whose retirement opened up this spot?) in the last year.

The problem with Ginsburg staying on the court wasn't that she failed to predict her death, it's that she either failed to consider the possibility or convinced herself that she was so uniquely indispensable that her serving a few more years was worth the risk (even if she deemed the probability to be relatively small) of giving away the seat to the radical right for a generation.
posted by firechicago at 11:18 AM on February 26, 2022 [2 favorites]


Do you really think Mitch & Co. would have let Obama pick a suitable replacement for her? In spite of all evidence to the contrary?

Yeah, THIS.
posted by jenfullmoon at 4:13 PM on February 26, 2022


Yeah, THIS.

If she had retired in 2014 or 2015? Abso-damn-lutely.
posted by Gadarene at 4:17 PM on February 26, 2022 [1 favorite]


I am growing more and more weary of the cult of Justice Ginsburg (which she absolutely leaned into and encouraged, not incidentally). It’s always stupid to hero worship politicians, but this instance is even worse than usual. As far as I’m concerned, Ginsburg completely trashed her SCOTUS legacy, period. Nothing she did on the SCOTUS, not one opinion or dissent (and it’s worth noting that most of her most famous writings were, in fact, dissents), was worth handing the US Right a supermajority for the next 25 years, but that’s what she did. She had already had cancer two times when people called for her to resign; she stayed because she thought, and stated, she was irreplaceable (I guess the couple dozen available and extremely capable Circuit Court judges weren’t acceptable to her). And it was clear that she was in very frail health for years even before people (including Obama, probably) asked her to step down. But she couldn’t “predict the future”? Please. She knowingly decided to gamble with our futures and we were the ones who lost her gamble. Sheer hubris and self-regard, and we’ll all pay the price.

And please learn who had a majority in the Senate until January 2015 already, for God’s sake.
posted by holborne at 6:05 PM on February 26, 2022 [9 favorites]


Mod note: Folks, enough with the RBG what-if thing, none of us are prophets.
posted by cortex (staff) at 6:54 PM on February 26, 2022 [5 favorites]


Folks, enough with the RBG what-if thing, none of us are prophets.

Ruthsayers
posted by ActingTheGoat at 9:42 PM on February 26, 2022 [6 favorites]


« Older the solace of sound   |   It was like eating a sad, square-shaped memory of... Newer »


This thread has been archived and is closed to new comments