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Senate confirms Jackson as first Black woman on Supreme Court

Judge Ketanji Brown Jackson won support from all Democrats and a handful of Republicans. She will be sworn in when Justice Stephen G. Breyer retires this summer.

On April 7 the Senate voted 53-47 to confirm Ketanji Brown Jackson, making her the first Black woman on the Supreme Court. (Video: The Washington Post)
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The Senate voted Thursday to confirm Judge Ketanji Brown Jackson to the Supreme Court, felling one of the most significant remaining racial barriers in American government and sending the first Democratic nominee to the high court in 12 years.

Jackson, a daughter of schoolteachers who has risen steadily through America’s elite legal ranks, will become the first Black woman to sit on the court and only the eighth who is not a White man. She will replace Associate Justice Stephen G. Breyer after the Supreme Court’s term ends in late June or early July.

Thursday’s 53-to-47 vote represented the culmination of a six-week whirlwind confirmation process for the 51-year-old federal appeals judge.

It began in February with President Biden introducing Jackson as a distinguished nominee who would “help write the next chapter in the history of the journey of America” and reached a climax during two days of tense Senate hearings last month as Republicans sought to paint her as a left-wing radical who had coddled criminals and terrorists, only for three GOP senators to ultimately reject those claims and support her confirmation.

Underscoring the partisan tensions, Jackson’s confirmation came only after the Senate Judiciary Committee deadlocked on her nomination along party lines and Republicans forced three procedural votes on the Senate floor this week. Still, Democrats said Thursday that her confirmation should be a cause for national reflection and jubilation.

“This milestone should have happened generations ago — generations ago — but we are always trotting on a path towards a more perfect union,” Senate Majority Leader Charles E. Schumer (D-N.Y.) said. “America today is taking a giant step towards making our union more perfect.”

The Senate on April 7 voted to confirm Judge Ketanji Brown Jackson to the Supreme Court. (Video: The Washington Post, Photo: Oliver Contreras/The Washington Post)

Biden nominates Ketanji Brown Jackson to the Supreme Court

Democrats in the chamber erupted in loud applause when the final tally was called, with hundreds of House members, aides and guests watching from the sidelines. Vice President Harris, the first Black woman to hold that post, presided over the vote, while Biden and Jackson watched the proceedings from the White House; a photo showed them embracing when the outcome was clear.

When Jackson is sworn in, the nine-member Supreme Court for the first time will have four women. Also for the first time, a majority of the justices will not be White men.

While Jackson won the support of three of the Senate’s 50 Republicans, the largely party-line vote highlighted how contentious Supreme Court confirmation votes have become, raising the prospect that in the future, Supreme Court nominees might have difficulty winning confirmation if the Senate is controlled by the opposition party.

“I can promise you — nominees like this will not make it through,” said Sen. Lindsey O. Graham (R-S.C.), discussing the implications for Biden if Republicans win a Senate majority later this year. “We’ll go back to the old system of collaboration.”

The historic resonance of the moment has been tempered by the polarized reception that Jackson received in the Senate, which has been riven by an escalating series of grievances surrounding judicial nominations stretching back four decades. Jackson’s tally fell considerably short of those earned by previous trailblazing nominees, such as Thurgood Marshall, the first Black justice, who was confirmed 69 to 11 in 1967, or Sandra Day O’Connor, the first woman, who was confirmed 99 to 0 in 1981.

Democrats’ jubilation was also accompanied by a measure of anger at the rhetoric some Republicans employed in attacking Jackson’s nomination, aimed at stoking GOP campaign attacks on Democrats as being soft on crime and indulgent of radical views on race and gender. GOP senators found ammunition in her past representation of Guantánamo detainees when she was a federal public defender, her sentencing record as a trial judge on D.C.’s federal bench, and even the curriculum of the private school her children attend and on whose board she serves.

Many senators had anticipated a relatively sedate confirmation process: Jackson is replacing a fellow liberal in Breyer, meaning her confirmation will not significantly affect the court’s 6-3 conservative tilt. The past two GOP nominees, both unabashed conservatives, replaced a liberal legend in Justice Ruth Bader Ginsburg and a frequent swing vote in Justice Anthony M. Kennedy.

But the lower ideological stakes for the confirmation were no match for the crucibles of culture-war politics or election-year posturing. Amid the attacks, Jackson largely kept her composure during two consecutive days of marathon hearings, earning plaudits from Republicans and Democrats.

“Her grace was evident from the jump, and I don’t think you can diminish that,” said Sen. Cory Booker (D-N.J.), the only Black senator to participate in Jackson’s hearings. “Nothing can steal the joy of this moment.”

NAACP President Derrick Johnson said in a statement that Jackson had “outshined the hate” she faced from hostile questioners. “After weeks and weeks of racist, misogynistic and stomach-churning attacks, we cannot wait to finally call her Justice Jackson,” he said after Thursday’s vote.

A trio of Republican senators who have signaled higher political ambitions — Tom Cotton of Arkansas, Ted Cruz of Texas and Josh Hawley of Missouri — each used the hearing to interrogate Jackson about sentences she had imposed, homing in particularly on cases Jackson handled that involved men convicted of trading child pornography over the Internet.

In each of those cases, Jackson’s sentences fell below federal guidelines and prosecutors’ requests. But they were not out of line with other federal judges, many of whom have criticized the guidelines for being too harsh on offenders who collect images online without directly harming children.

Ketanji Brown Jackson defends sentencing decisions, says she would recuse from affirmative action case

When Hawley asked Jackson on March 23 whether she regretted one particular sentence, she replied, “What I regret is that, in a hearing about my qualifications to be a justice on the Supreme Court, we have spent a lot of time focusing on this small subset of my sentences.”

Summarizing her approach to the law, Jackson said she had a “methodology” to decide cases but not an overarching philosophy. At times, she agreed with Republican senators about the importance of adhering to the plain text of the Constitution and the meaning that text had to the Founders, the essence of the conservative legal doctrine of originalism.

“Judges should not be policymakers,” Jackson said. “That’s a part of our constitutional design, and it prevents our government from being too powerful and encroaching on individual liberty.”

Sen. Richard J. Durbin (D-Ill.), the chairman of the Senate Judiciary Committee, suggested that in future hearings, the questioning — with each of the 22 committee members allotted an hour — could be cut back. “This was a trial by ordeal,” Durbin said, adding, “It’s become an endurance contest, and I don’t think that necessarily serves the interests we’re trying to serve.”

Most Republican senators said in explaining their opposition that they simply disagreed with Jackson’s “judicial philosophy,” or at least her inability to define that philosophy to their satisfaction. Top GOP leaders, meanwhile, did little to tamp down the harsher attacks, with many seeing them as fair game, especially after the searing 2018 confirmation of Justice Brett M. Kavanaugh.

Calling Jackson a “liberal activist,” Senate Minority Leader Mitch McConnell (R-Ky.) on Wednesday said the hearings had, in his view, only heightened conservatives’ concerns about her record. He cited her handling of a case involving the Trump administration’s border policy that was later overturned on appeal, and a sentencing record that he said “slanted … dramatically and consistently in the direction of going soft on crime.”

“No nominee before the Senate for any position deserves a cakewalk or a coronation,” he said Thursday, moments before the vote. “Tough questions about a federal judge’s own rulings and statements are the definition of fair game.”

Collins says she will back Ketanji Brown Jackson for Supreme Court

Meanwhile, several Republican senators continued the attacks on Jackson’s record outside the chamber, telling reporters at a news conference that her record was well outside of the legal mainstream.

“She is an extreme outlier on the question of crime,” Cruz said. “And as a Supreme Court justice, I think we can reasonably expect that Justice Jackson will consistently vote — as she has done as a judge for the last 10 years — for more lenient sentences for criminal defendants, for releasing violent criminals, for lessening the punishment on the very worst sex offenders.”

But to three Republican senators, the narrative that Jackson was a partisan extremist did not ring true. Sen. Susan Collins (R-Maine) said Jackson had the “experience, qualifications, and integrity” to merit confirmation and, in backing Jackson, appealed to her colleagues to step back from the partisan brinkmanship that has increasingly dominated Supreme Court confirmations.

Sen. Lisa Murkowski (R-Alaska) said much the same, decrying the “corrosive politicization of the review process for Supreme Court nominees, which, on both sides of the aisle, is growing worse and more detached from reality by the year.” Sen. Mitt Romney (R-Utah), meanwhile, declared Jackson to be “a well-qualified jurist and a person of honor.”

The GOP support for Jackson’s confirmation, minimal as it may be in historic terms, was gratifying to Democrats, who have been eager to put a bipartisan stamp on Jackson’s nomination.

They invited a retired Republican-appointed judge who served on the U.S. Court of Appeals for the District of Columbia Circuit, Thomas Griffith, to introduce Jackson to the Senate Judiciary Committee. They sought to counter the GOP soft-on-crime attacks by touting her endorsements from the Fraternal Order of Police, the International Association of Chiefs of Police and other law enforcement groups. And the White House and key Democratic senators kept in close touch with the Republican swing votes to manage any concerns that arose.

Durbin, who shepherded Jackson’s nomination through the Senate, publicly thanked Collins, Murkowski and Romney on Thursday for their “political courage” and said history would look kindly on their votes.

“Our grandchildren may ask where we were on this historic day, April 7th, 2022, when America broke down what seemed like an impossible racial barrier,” Durbin said. “I will be proud to say I was on the Senate floor, standing at my desk and casting my vote with pride.”

Jackson’s confirmation was the culmination of a quest to bring racial and gender diversity to the federal bench — one shared by Schumer and Biden, who each spent decades on the Judiciary Committee.

In an interview ahead of the final votes, Schumer proudly noted that more than half of Biden’s 59 confirmed judicial nominees have been people of color, and more than half have been women. The federal bench, he said, ought to “mirror America.”

“It shouldn’t be all, you know, partners in fancy law firms or prosecutors,” he said. “That’s a portion of America, but it’s not all of America, and we’re making it better.”

Jackson will be the first public defender to serve on the high court. She also served on the U.S. Sentencing Commission, an agency tasked by Congress with setting sentencing guidelines for federal judges. She was nominated to the U.S. District Court for the District of Columbia by President Barack Obama in 2012 and elevated by Biden to the U.S. Court of Appeals for the District of Columbia Circuit last year in what was widely seen as a prelude to a potential Supreme Court nomination.

While Jackson’s hearing featured moments of drama, the most consequential question surrounding her confirmation came down to attendance: In a Senate split 50-50, and with GOP votes initially far from assured, Democrats could not afford a single absence. At party lunches and in conversations with his caucus members, Schumer advised them to take no “undue risks” given the high stakes for the nomination.

“When you have 50 votes, you’re living a life of tenterhooks,” Schumer said. “Almost any time you get a call, you say, ‘Okay, I hope this isn’t what I worry about.’ ”

Schumer got just such a call days after Breyer announced his retirement: Sen. Ben Ray Luján (D-N.M.) had suffered a stroke, and it was several days before doctors would know his prognosis. Schumer called the situation “very worrisome — on a personal basis, above all, but obviously on a court basis, too.”

Luján’s stroke turned out to be relatively minor, and Democrats proceeded on their initial timetable, which aimed to confirm Jackson ahead of their two-week recess for the spring holidays. All 100 senators voted Thursday.

Now Jackson faces an odd interregnum. Breyer has said he will not vacate his post until the court “rises” at the end of the term, which means all argued cases are dispensed with and housekeeping duties performed — a point that is expected to fall in late June or early July.

Most nominees take their oaths quickly after they are confirmed, but Breyer’s unusual timetable means that cannot happen immediately. Even though Jackson would join the court as it starts its summer recess, she would likely move quickly to organize her chambers and hire personnel, and she would be called upon before the start of next fall’s term to decide emergency petitions, an increasing part of the court’s workload.

The justices meet in September to sort through hundreds or thousands of petitions and select the cases they will hear. Although an official investiture ceremony might come earlier, Jackson would take the bench for official duty on the first day of the court’s new term, Oct. 3.

Robert Barnes and Paul Kane contributed to this report.