As usual, President Biden’s promises to the left wing of his party and its interest groups left little room for maneuver. His choice of Ketanji Brown-Jackson is uninspiring, but unless Republicans are surprised by an unexpected bombshell in her past, it’s likely to be confirmed.
Biden pledged in 2020 to choose the first African-American woman on court, which in one fell swoop has disqualified 97% of candidates from the job based solely on their race and gender. Left groups pressured Jackson because she served as a public defender and was seen as more sympathetic to criminal defendants. It has also drawn attention in the cases against Donald Trump.
Jackson holds two Harvard degrees, has served on the Breyer Supreme Court and is an experienced trial judge, but she is not an active or persuasive writer or legal scholar. Biden and Democrats do not expect her to have a consistent theory about how to read the Constitution and the laws. They just want results. In introducing Jackson, Biden spoke of a “working understanding” of a “flexible” constitution – a symbol of doing what Democrats want rather than what the Constitution mandates.
In her introduction to the White House, Jackson distanced herself from the speech of the Socialist wing of the Democrats. She opened with thanks to God, speaking of motherhood and the cops in her family and said that “the United States of America is the greatest beacon of hope and democracy the world has ever known.” She is related to marriage to former House Speaker Paul Ryan. But nothing in her record suggests that she would vote on the court any differently than any other leftist.
Jackson also has an issue with the biggest issue on the trial period next year, challenging racial discrimination against Asians in admission to Harvard University in the name of “diversity.” Jackson served for years on the Harvard University Board of Supervisors, and is expected to disqualify herself from the case.
With 50 Senate votes and Vice President Kamala Harris to break ties, Democrats can get Jackson’s confirmation without a single Republican vote if they remain united. Three Republicans voted to put Jackson on the federal appeals court for the D.C. circuit last year, but one of those (Lindsey Graham) seems likely to oppose her promotion even more.
In 2018, the Democrats’ character assassination campaign against Brett Kavanaugh exploded in their faces, helping Republicans defeat four incumbent Democratic senators in what was otherwise a very good Democratic year. Republicans will proceed with more caution with Jackson. Because she has ruled on relatively few heated questions during her decade as a judge, Republicans may focus on her time as a lawyer, when she represented Guantanamo detainees and helped defend a law targeting protesters at abortion clinics.
Biden can live to regret his choice. Jackson, 51, will join a court with a 6-3 majority of Republican appointees as the oldest judge, Clarence Thomas, turns 73. Health permitting, it may take a long time before there is another vacancy. Among the court’s liberals, Elena Kagan has worked strategically to build bridges with Chief Justice John Roberts and other more conservative justices, while Sonia Sotomayor prefers opposition bitterly, sometimes alone. If Jackson goes down Sotomayor’s path, it could mean more cases where all they accomplish is win the vote.
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