The news broke Friday that President Biden will name Ketanji Brown Jackson as his nominee to fill the seat of retiring Supreme Court justice Stephen G. Breyer. If you were expecting this confirmation to be an enlightening debate over the nature of the Supreme Court and the future of American law, you’re probably out of luck.
In the last confirmation battle, for Amy Coney Barrett in late 2020, Democrats attempted to pin down her actual positions on legal issues, especially abortion. The response from Barrett and her allies was a master class in evasion. She was part genius and part intellectual vacuum, they effectively argued; unsullied by politics or opinions on substantive issues, she would be little more than a medium through which the wisdom of the Framers would pass.
But now, even though Barrett has been just as conservative as they’d hoped, Republicans will turn around and say that Jackson is all politics, a radical activist bent on using the court to advance her socialist agenda.
When news of Jackson’s potential nomination first leaked, Republicans erupted in shameless race-baiting by railing at Biden’s 2020 campaign promise to appoint a Black woman. That produced a strong reaction, which might — might — make some Republicans less likely to go straight for the racial appeals. But even if they are, you won’t have to listen too hard to discern the thumping bass line.
How will they do it? Look for them to focus on crime, the issue whose racial resonances are understood by one and all.
Amidst the long list of items on her stellar résumé, Jackson would be the first Supreme Court justice to have worked as a federal public defender. We got a preview of how Republicans will likely weaponize this service at the recent confirmation hearing for Nina Morrison, who has spent decades working with the Innocence Project to exonerate wrongly convicted Americans, and whom Biden nominated for a lower court judgeship.
Republicans on the Judiciary Committee attacked Morrison with surprising venom, seemingly outraged that she had represented innocent people. Sen. Ted Cruz (R-Tex.) claimed the nation’s recent increase in certain crimes “are the direct result of the policies you’ve spent your entire lifetime advancing,” while Sen. Josh Hawley (R-Mo.) vowed not to support her or any other nominee that he finds “soft on crime and soft on criminals.”
Expect to hear the same thing as Jackson’s nomination is considered: Because she represented people accused of crimes who could not afford to defend themselves, she must be “soft on crime” and will be forced to answer endless loaded questions about current crime statistics.
To anyone willing to listen, Jackson will undoubtedly have persuasive responses, especially given that there is nothing more foundational in our criminal justice system than the principle that every accused person deserves a vigorous defense. She might also note that there might be no better place from which to understand the strengths and weaknesses of that system than from its bottom, where indigent defendants learn at every turn how much the process is stacked against them.
Yet that will not deter the accusations that Jackson is responsible for crime and someone whom “regular” Americans should fear. When you hear that ugly rhetoric, recall that four of the six conservative justices — John G. Roberts Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — worked for white-shoe corporate law firms for at least part of their careers. You didn’t hear much about whether that might have skewed their beliefs about the law, because that just isn’t something members of the Senate find suspect.
The truth is that while Republicans will try to make people think Jackson will usher in a lawless nightmare of violence and depredation, most of what she’ll be dealing with in her first few years on the court (and maybe much more) is the conservative legal agenda. The conservative supermajority decides what cases the court takes, and then how it will rule. Hers will be a minority voice on a court eager to dismantle voting rights, expand privileges for Christian conservatives, strike down restrictions on gun proliferation, restrict women’s reproductive rights and limit the ability of government to solve problems.
This isn’t to say Jackson will, along with Sonia Sotomayor and Elena Kagan, be a mere bystander to the conservative legal revolution already in progress. But the most that liberals can hope for in the short to medium term is for her to help to build something that might influence the court’s path in the future.
Which is why Aziz Huq smartly suggested that Biden should nominate “a Scalia-like jurist for the left," not someone who will try to find compromise in a court where they will usually lose, but an ideological warrior who will write passionate dissents and fashion an intellectual foundation that can be built on over a span of decades.
It’s hard to know if Jackson will turn out to be that kind of justice. But if she stands up to the onslaught Republicans are preparing, she’ll be off to a good start.