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Biden nominates Ketanji Brown Jackson to the Supreme Court

Jackson would be the first Black woman on the high court, and the first justice since Thurgood Marshall with significant experience as a criminal defense attorney

On Feb. 25, President Biden announced federal judge Ketanji Brown Jackson as his nominee to replace retiring Justice Stephen G. Breyer on the Supreme Court. (Video: The Washington Post)
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President Biden announced Friday the nomination of federal Judge Ketanji Brown Jackson to replace retiring Justice Stephen G. Breyer, a historic choice that fulfills the president’s pledge to nominate the first Black woman to the Supreme Court and would make Jackson, 51, just the third African American in the high court’s 233-year history.

A former public defender, Jackson served as a trial court judge in Washington for eight years before Biden elevated her last year to the influential U.S. Court of Appeals for the D.C. Circuit. She was confirmed to that court after a relatively uncontentious Senate hearing and with the backing of three Republican lawmakers.

Biden introduced Jackson on Friday afternoon at the White House, praising her as “someone with extraordinary character” who “will bring to the Supreme Court an independent-minded, uncompromising integrity.” The president, who spent weeks considering whom to nominate, touted Jackson’s varied legal experience and her personal background.

“For too long, our government and our courts haven’t looked like America,” Biden said. “I believe it’s time that we have a court that reflects the full talents and greatness of our nation, with a nominee of extraordinary qualifications, and that we inspire all young people to believe that they can one day serve their country at the highest level.”

Jackson’s confirmation would not affect the current conservative 6-to-3 supermajority on the court. She would be likely to vote with liberals on the most contentious issues facing the Supreme Court, including affirmative action, abortion, LGBTQ protections and gun rights — but she would be replacing another liberal more than 30 years her senior. And while Biden described Jackson as a “consensus-builder," the court’s right flank is moving fast and not particularly looking for compromise.

Jackson, who would join a significantly diminished liberal wing if confirmed, would bring a diverse personal and professional background to the high court. She was a law clerk for Breyer in 1999, and she helped shape federal sentencing policy on the U.S. Sentencing Commission after stints at private law firms.

At the federal public defender’s office in D.C. for 2½ years, Jackson represented indigent clients in criminal cases and detainees held at Guantánamo Bay, Cuba. She would be the first justice since Thurgood Marshall with significant experience as a criminal defense attorney, a trait often touted by her supporters.

Biden’s court pick Ketanji Brown Jackson has navigated a path few Black women have

Jackson’s Ivy League credentials — she’s a Harvard Law graduate and former editor of the Harvard Law Review — are similar to other modern justices, but the importance of her nomination is singular. She would be the first Black woman on the nation’s highest court. And for the first time in history, there would be near-parity on the court, with five men and four women. As recently as 2009, there was only one woman.

“I can only hope that my life and career, my love of this country and the Constitution, and my commitment to upholding the rule of law and the sacred principles upon which this great nation was founded will inspire future generations of Americans," Jackson said at the White House.

In her brief remarks, she highlighted her family’s diverse background and touched on points that could resonate widely: her faith, her relatives’ careers in the police and military, the importance of her family. Jackson began by thanking God “for delivering me to this point," and she also did not neglect to mention an uncle who landed in prison after struggling with drugs.

If confirmed, she would join a bench that includes Justices Clarence Thomas and Sonia Sotomayor, meaning a third of the court for the first time would be made up of people of color.

Civil rights groups fervently applauded the announcement, saying it was deeply unjust that an institution with so much influence over Americans’ lives had been limited to White men for so long, and calling Jackson’s nomination a big step forward.

“This is a tremendously historic moment for our nation and our community in particular,” NAACP President Derrick Johnson said in a statement. “President Biden has met this moment with an extraordinarily qualified nominee, who has stellar credentials and an impeccable background.”

Biden announced Jackson’s nomination exactly two years after vowing on a South Carolina debate stage to nominate the first Black woman if a Supreme Court vacancy emerged during his presidency.

After Biden was elected, liberal activists mounted an aggressive public campaign to persuade Breyer, now 83, to retire, warning if he did not step down before the midterms, Democrats could lose another reliable liberal vote on the court. Former president Donald Trump placed three justices on the high court, which fundamentally reshaped the Supreme Court’s ideological balance.

In addition to Jackson, Biden interviewed J. Michelle Childs, a federal judge in South Carolina, and Leondra Kruger, a justice on the California Supreme Court. Biden called Jackson on Thursday night to offer her the nomination.

Childs’s candidacy, in particular, was backed by House Majority Whip Rep. James E. Clyburn (D-S.C.), whose endorsement of Biden ahead of the South Carolina primary revived his presidential campaign. Clyburn praised Jackson’s selection on Friday though showed no remorse for his public campaign in support of Childs.

“I’m Black, and I’m a Southerner, and I’ll do everything I can to promote Southerners and Black people who are deserving of attention for public office,” Clyburn said Friday. “When you play the game you may not always win. But if you don’t play the game, you will never win. And so I advocated for Judge Childs. She is an outstanding judge.”

While Biden’s commitment to make a historic nomination of a Black woman was applauded by Black leaders and the civil rights community, some Republicans complained that the president was applying a racial litmus test.

Along with his selection of Vice President Harris as his running mate, Biden’s pattern of elevating women and minorities to prominent government posts is now likely to be among his biggest legacies. Biden’s choice could also provide Democrats a political boost by energizing Black voters ahead of November’s midterms especially as the president’s popularity has been sagging, including among some African American voters who say he has not fulfilled his promises of sweeping change.

More immediately, the nomination will kick off a Senate fight that is likely to be bitter, if recent confirmation battles are any indication. Liberal and civil rights groups are ready to tout Jackson’s qualifications and temperament and push back against any attacks they see as racist or sexist. Republicans and conservatives, meanwhile, have been drawing up plans to dismiss any Biden nominee as radical and outside the mainstream.

In a statement, Senate Minority Leader Mitch McConnell (R-Ky.) said he looked forward to reviewing Jackson’s record but also quickly signaled he was likely to oppose her nomination.

“I voted against confirming Judge Jackson to her current position less than a year ago,” McConnell said. “Since then, I understand that she has published a total of two opinions, both in the last few weeks, and that one of her prior rulings was just reversed by a unanimous panel of her present colleagues on the D.C. Circuit. I also understand Judge Jackson was the favored choice of far-left dark-money groups that have spent years attacking the legitimacy and structure of the Court itself.”

But the White House is hopeful Jackson can get bipartisan support. In introducing her, Biden underscored that Jackson has already been confirmed by the Senate three times, and Sens. Susan Collins (Maine), Lindsay O. Graham (S.C.) and Lisa Murkowski (Alaska), all backed Jackson when she was confirmed to the D.C. Circuit in a 53-to-44 vote.

Still, the stakes are significantly higher for a Supreme Court nominee, and there is no guarantee that the three GOP senators who backed her last time would do so again for the high court.

Potential pick Ketanji Brown Jackson would make history as first federal public defender on Supreme Court

Jackson was born in the District of Columbia in 1970 and grew up in Miami in a family that valued public service. Her parents began their careers as public school teachers. Two uncles were law enforcement officers, including one who became Miami’s police chief.

A high school debate champion and class president, Jackson earned her undergraduate and law degrees from Harvard, where she met her future husband Patrick Jackson, a surgeon. She went on to work as a law clerk for three federal judges, including Breyer.

"Justice Breyer, the members of the Senate will decide if I fill your seat, but please know that I could never fill your shoes,” Jackson said Friday.

In eight years on the U.S. District Court, Jackson has presided over hundreds of cases, and Republican lawmakers are likely to revive questions about several of her rulings against the Trump administration. She ordered former president Donald Trump’s former White House counsel Donald McGahn to comply with a House subpoena, for example, declaring “presidents are not kings.”

Jackson also issued a nationwide preliminary injunction that blocked the Trump administration from expanding its power to deport migrants who illegally entered the United States by using a fast-track process.

At the courthouse just blocks from the U.S. Capitol, Jackson is known for her collegiality and as a skilled writer who works long hours. She reads final drafts of her opinions aloud while standing at a lectern to ensure her writing is accessible to a broader audience. In her chambers, the maroon and gold embossed set of U.S. Code books is not purely decorative but an integral part of Jackson’s process. She reminds her law clerks to “always start with the books.”

During her varied legal career, Jackson served as a vice chair of the U.S. Sentencing Commission, giving her experience working on a multi-member bipartisan panel that required compromise to shape federal sentencing policy. Her former law clerk Jo-Ann Sagar, a lawyer in D.C., said Jackson would bring that same approach to the Supreme Court.

“She considers herself a lifelong learner,” said Sagar, who also clerked for Breyer and for Justice Brett M. Kavanaugh during his time on the U.S. Court of Appeals for the D.C. Circuit. “There’s always something to be learned from someone even if you disagree with them. She’s very committed to that idea that there is always common ground and that the distances between us are not as significant as they may seem at first glance.”

Andrew Crespo, a Harvard Law School professor who previously worked as a public defender, said Jackson’s experience as an attorney for poor criminal defendants would bring a fresh perspective to the court on issues of policing and mass incarceration. While Breyer was outspoken with his concerns about the constitutionality of the death penalty, he was at times more moderate regarding cases involving the rights of criminal suspects.

“If you have represented people who have gone through that system, you understand its injustices because you have seen them up close,” said Crespo, who was a law clerk to Breyer and Justice Elena Kagan. “Someone who comes to the bench with those perspectives will be not just a welcome addition to the bench, but someone who moves the court in a welcome direction.”

On the U.S. Court of Appeals for the D.C. Circuit, Jackson was part of a three-judge panel this fall that unanimously rejected Trump’s bid to block the release of White House records to the congressional committee investigating the Jan. 6 attack on the U.S. Capitol. The Supreme Court affirmed the decision in January with only Justice Clarence Thomas noting dissent.

Last summer, she allowed the Biden administration’s pandemic-related moratorium on evictions to remain in place before the Supreme Court later blocked the measure. And in her first appellate ruling in February, Jackson wrote a unanimous opinion siding with labor unions in a challenge to a Trump administration change in collective bargaining rules.

At her D.C. Circuit confirmation hearing last spring, Jackson committed to being a neutral, fair-minded judge in response to questions from Republicans.

“I know very well what my obligations are, what my duties are, not to rule with partisan advantage in mind, not to tailor or craft my decisions in order to try to gain influence or do anything of the sort,” Jackson told the Senate Judiciary Committee.

“It doesn’t make a difference whether or not the argument is coming from a death row inmate or the president of the United States,” she said. “I’m not injecting my personal views.”

Senate Democrats have been eager for Biden to make his Supreme Court selection and move quickly on confirmation, although the initial hope of Senate Majority Leader Charles E. Schumer (D-N.Y.) that the process would take no more than a month now appears unlikely.

Sen. Richard Durbin (D-Ill.) says he wants to lead a smooth confirmation process in the Senate Judiciary Committee. Will delays or "dog whistle" politics occur? (Video: The Washington Post, Photo: Jabin Botsford/The Washington Post)

Democrats want to be sure that all 48 Democratic senators, plus the two independents who vote with them, are present for any confirmation vote. Various health considerations, including covid-19 diagnoses, have often foiled Senate leaders’ plans in recent months, and Sen. Ben Ray Luján (D-N.M.), who suffered a stroke in late January, is expected to return to Washington sometime in March.

Biden urged the Senate to move quickly to confirm Jackson. “Her opinions are always carefully reasoned, tethered to precedent, and demonstrate respect for how the law impacts everyday people,” he said. “It doesn’t mean she puts her thumb on the scale of justice one way or the other, but she understands the broader impact of her decisions.”

Robert Barnes contributed to this report

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