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Rapson: Ketanji Brown Jackson’s nomination will make Supreme Court look more like America

From the President

A momentous day, as President Biden this morning nominated Judge Ketanji Brown Jackson to be the next member of the United States Supreme Court – and the Court’s first African-American woman member if confirmed.

The U.S. Court of Appeals for the D.C. Circuit, on which Judge Jackson has served for the last year (after serving as a federal judge at the trial court level for eight years), is often seen as the most influential of the thirteen Courts of Appeal. It has produced eight Supreme Court members, including Warren Burger, Ruth Bader Ginsburg, Antonin Scalia, Clarence Thomas, John Roberts and Brett Kavanaugh.

Before rising to the Circuit Court, Judge Jackson distinguished herself in a number of high-profile cases. Perhaps her most high profile was her decision in late 2019 that President Trump’s first White House Counsel, Don McGahn, could not claim absolute immunity in trying to defy a congressional subpoena. One sentence from that decision has become iconic: “Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings.”

The nomination of Judge Jackson not only fulfills President Biden’s commitment to appoint a Black woman to the Court, but it also adds additional momentum to his administration’s commitment to ensure over time that the federal bench looks like America. Seventy-five percent of his appointments have been women, and sixty-five percent people of color. He has appointed the first openly LGBTQ woman to sit on a federal appeals court and the first Muslim American to serve as a federal district court judge. He has named more Black women to the federal circuit courts – many of whom have public defender, not prosecutorial, backgrounds – than any of his predecessors.

The diversity of Judge Jackson’s race and gender is joined by the diversity of her experience. She would become the first Supreme Court Justice since Thurgood Marshall to have served as a public defender. She would accordingly introduce onto the court experience with representing criminal defendants and first-hand knowledge of the ways in which the criminal justice system inequitably and disproportionately treats people of color.

In addition, during her tenure a decade ago as the assistant special counsel to the United States Sentencing Commission, which sets sentencing guidelines for the federal courts, the Commission addressed sentencing disparities for those convicted of crack cocaine possession. She memorably wrote: “My vote today does not resemble any caricature of a policymaker intent on freeing violent felons without authorization and against congressional will,” Jackson said. “If ever the day should come when the retroactive application of a guideline … furthers our societal interests in equitable sentencing and the avoidance of unwarranted disparity, this is that day.”

The confirmation process will be – likely unfortunately – yet one more litmus of the extent to which it is naked partisanship or balanced assessment that controls the selection of our federal judiciary. Judge Jackson’s academic and professional credentials are impeccable. Let’s see if Senator Chuck Schumer is right and the confirmation will come with the same swiftness as did Associate Justice Amy Coney Barrett’s.