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Ketanji Brown Jackson Is Next

History is made at the Supreme Court.

March 4, 2022
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This article first appeared in The Bulwark on Febru­ary 25th, 2022.

On this final Friday of African-Amer­ican History Month, Pres­id­ent Joe Biden announced federal judge Ketanji Brown Jack­son as his pick for the Supreme Court. In doing so, he remained true to his campaign prom­ise to nomin­ate a black woman to the nation’s highest court and make history.

Brown Jack­son currently sits on the U.S Court of Appeals for the D.C. Circuit, a Senate-confirmed posi­tion she has held since last June. Prior to her time as a circuit judge, she was a district judge and the vice chair of the U.S. Senten­cing Commis­sion, both of which are posi­tions requir­ing Senate confirm­a­tion.

These previ­ous confirm­a­tions are partic­u­larly advant­age­ous given the levels of partis­an­ship in our current polit­ics. Though she would survive a strictly party-line Senate vote, Brown Jack­son has received Repub­lican support for all her previ­ous confirm­a­tions. In 2010, she received unan­im­ous consent to be vice chair of the Senten­cing Commis­sion. In 2013, she was confirmed by voice vote to be a district judge on the U.S. District Court for D.C.

And just last year, she was confirmed as a circuit judge by a 53–44 Senate vote, with Repub­lican senat­ors Lisa Murkowski, Lind­sey Graham, and Susan Collins voting in favor. It would be odd if all three believed Brown Jack­son was qual­i­fied for the circuit court last year but suddenly adop­ted the view that she’s not compet­ent to sit on the Supreme Court now. This calcu­la­tion was likely part of what Biden considered in making her his choice. Perhaps a wild­card feature in her favor: She is related by marriage to former Repub­lican Speaker of the House and Vice Pres­id­en­tial candid­ate Paul Ryan, who said at her confirm­a­tion hear­ing for district judge: “Our polit­ics may differ, but my praise for Ketanji’s intel­lect, for her char­ac­ter, for her integ­rity, it is unequi­vocal. She is an amaz­ing person, and I favor­ably recom­mend your consid­er­a­tion.”

Brown Jack­son’s pedi­gree is clearly the stuff of a Supreme Court justice-in-the-making. She is a gradu­ate of Harvard College and Harvard Law, clerked for Justice Stephen Breyer (the man she will replace, if success­fully confirmed), and has held posi­tions in the exec­ut­ive branch and private prac­tice. But one detour stands out: Brown Jack­son spent two years as a public defend­er­—which is, as SCOTUS blog points out, atyp­ical for justices, but similar to the back­ground of the man whose mantle she would likely take up, Thur­good Marshall.

The national stage that Supreme Court hear­ings offer will almost certainly lead to a few conten­tious exchanges between Brown Jack­son and Repub­lican senat­ors. One aspect of her judi­cial decisions that may attract special atten­tion are her rulings concern­ing the Trump admin­is­tra­tion, such as when she ruled Trump’s former White House coun­sel Don McGahn would be required to testify before the House commit­tee invest­ig­at­ing Russian inter­fer­ence in the 2016 elec­tion. But perhaps of even more interest will be that she did not believe Trump’s claim of exec­ut­ive priv­ilege covered his removal of clas­si­fied docu­ments from the White House and joined the Circuit Court’s opin­ion that Trump would need to turn over those records. A few Repub­lican senat­ors may focus on these cases to signal fealty to the former pres­id­ent.

But amid all the debates about Brown Jack­son’s record, her judi­cial philo­sophy, and the polit­ics and polit­ical theater that will certainly attend her nomin­a­tion and confirm­a­tion hear­ing, the nation would do well to pause and appre­ci­ate this historic moment.

To chalk her nomin­a­tion up to iden­tity polit­ics run amok is to miss the beauty of the Amer­ican story that this moment encap­su­lates—a story of progress and of repres­ent­a­tion. As threats to our demo­cracy emerge from all corners, in the eye of the storm, there is a glimpse of the Amer­ican prom­ise.

A nominee who comes from people most excluded from parti­cip­a­tion in our demo­cracy—the fran­chise was tent­at­ively exten­ded to black men in 1870, to white women in 1920, and finally more fully to black women only in 1965—sit­ting on the highest court in the land is a symbol of the power, and poten­tial, of the Amer­ican idea.

No matter your polit­ics or ideo­lo­gical lean­ings, we should all take pride in this beau­ti­fully Amer­ican moment.