The Remarkably Uncontroversial Choice of Judge Jackson

During the campaign, Joe Biden spoke words that he believed would help get him elected by announcing that if was to get the opportunity to nominate a Supreme Court justice, he would choose a black woman. How much that helped him will never be clear, but that it  would taint his nominee in the eyes of his adversaries was obvious. After all, is there any smaller cohort in the scheme of potential Supreme Court nominees than black women, a tiny fraction of a tiny fraction of a small fraction of the universe of potential nominees?

But the unspoken reality happened to make that announcement a little less troubling in the real world than it is in the world of identity politics, where announcing the qualifications for the next justice would be skin color and genitalia, not because it was pandering to the racists (would it have been any different if a president announced he would nominate a white man, an Asian transgender person, an Indigenous nonbinary person or, like me, a Jewish delisexual?), but because it so happened that the pool of potential nominees included some exceptionally good choices.

In this instance, it happened that there were candidates for the position who both fit the race and gender bill while simultaneously being exceptionally qualified for the position. Beat up Biden all you want for using race and gender as a bar, but that isn’t the fault of the candidates for the job. While some extol the historic nature of the choice, which only matters if you’re counting such things, and some latch onto the “looks like me” mantra, which bears no relevance to the position, the fact remains that absence of black women in the bar, on the bench, on the Supreme Court, wasn’t because they weren’t smart enough or good enough, but they were locked out of the opportunity for a very long time. That the pool of potential candidates existed at all is remarkable. That the pool was as strong as it was is amazing.

But ultimately, only one person can be nominated, and that person was Judge Ketanji Brown Jackson. She was Joe Biden’s choice, and he’s the president so he gets to make the call, and then it’s put to the Senate for advise and consent, provided they don’t pull another Garland.

There is nothing, but nothing, controversial about Judge Jackson’s nomination. So naturally, both sides feel compelled to invent controversy, one to push in her favor and the other to push against her. After all, here we are with another double Harvard, former Supreme Court clerk who was a district judge for almost a decade before moving to the circuit. This is about as ordinary a background as one could expect of a justice.

Her supporters make much of her having spent a little over two years working as a federal appellate defender. Not since Thurgood Marshall has there been anyone on SCOTUS with any criminal defense background, and there’s never been a former public defender on the Supreme Court. Breadth of experience is good, right? But as experience goes, this is fairly negligible. Indeed, it’s possible that she will be the “criminal defense expert” on the Court like Harry Blackmun was the “medical expert” because he had represented the Mayo Clinic, except he was no medical expert.

I have severe doubts whether Judge Jackson’s extremely brief foray as a federal appellate defender makes her much a criminal defense expert. If she had 20 years in the trenches, that would be one thing. She barely had enough time to make a dent in her desk chair, and there is nothing to suggest she has any clue what it’s like to walk into state court arraignments after three minutes in lockup. Yes, this is experience that’s sorely needed on the Supreme Court, which makes monumental decisions about criminal law while indulging in a theoretical fantasy about how the world functions on the street and in the trenches. It’s unclear (to me, at least) that she’s got the experience to bring reality into the conference room. You know the old saying, “a little knowledge is dangerous”?

What Judge Jackson does possess is experience as a district court judge, running trials, ruling on motions, seeing real live people on the stand, in the box and in the well, including both defendants and lawyers. She spent almost a decade doing the grunt work of the federal judiciary.* This experience is likely far more important to her role on SCOTUS, as it tends to be unclear, impractical and occasionally contradictory in its expectations of district judges applying its ethereal decisions to the real world. While Justice Sotomayor also spent some time on the trial bench, she spent twice as much time on the Circuit and really hasn’t been the voice of the trenches. Maybe Judge Jackson will do better.

For the same reason her supporters inflate the significance of her brief stint at appellate defender, her adversaries raise the obvious objections, that she defended bad dudes, including (dare I say it) terrorists. That is, of course, what criminal defense lawyers do, and for those lacking puny minds, should be exactly what we demand of the defense. Zealous representation, constitutional rights, and all the good stuff that is necessary to make the system work as well as it can. When, in the last of her three confirmation hearings, her defense of Gitmo terrorists was thrown at her, she responded in writing.

Jackson pushed back with polite forcefulness. “Having lawyers who can set aside their own personal beliefs about their client’s alleged behavior or their client’s propensity to commit crimes benefits all persons in the United States,” she wrote, “because it incentivizes the government to investigate accusations thoroughly and to protect the rights of the accused during the criminal justice process, which, in the aggregate, reduces the threat of arbitrary or unfounded deprivations of individual liberty.”

This is about as white bread a reply as it gets. Judge Kentaji Brown Jackson is hardly the “cross between Rachel Maddow and Emma Goldman” for whom Dahlia Lithwick yearned. She’s a very smart, experienced judge, who happens to be a black woman. Judge Jackson’s nomination should be as uncontroversial as it gets, and confirmed unanimously by voice vote. That won’t happen, of course, because both sides will overhype her until she’s unrecognizable as a human being, but it should.

*Some have raised the claim that Judge Jackson has been frequently reversed. Out of 600 opinions, she was reversed 12 times. Ain’t no big deal. While it may be fair to argue that her “judicial philosophy” won’t put her between Thomas and Scalia, it remains within the ordinary parameters of jurisprudence and just as Trump got to make his picks, so too does Biden, to whom deference should be shown provided the nominee is otherwise eminently qualified. Remember, you don’t have to like his choice, but he’s president and you’re not.


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15 thoughts on “The Remarkably Uncontroversial Choice of Judge Jackson

  1. Hunting Guy

    I’m opposed to her because she’s from Harvard.

    We need fresh blood in there, not someone in that Ivy League echo chamber.

      1. Drew Conlin

        … “So run for president. Win. Wait for your chance and nominate someone from Oberlin”…
        Isn’t that the same echo chamber?
        I will say I’m glad HG put his thoughts out there… I thought similarly.

  2. B. McLeod

    Biden has yet to nominate a Furry to any judicial vacancy. Are we to believe a qualified Furry cannot be found? Why does he hate the species-dysphoric?

    1. SHG Post author

      Therein lies the “looks like me” or “looks like America” fallacy. No Supreme Court will ever “look like” whatever every American wants, and even if it did, what difference would it make? They all wear the same black robes. Better they be good justices then care what they look like.

  3. Miles

    It’s appalling how many people are making a big deal, both for and against, Judge Jackson based on her minimal time as an appellate defender. She wasn’t a trench lawyer. She wasn’t in state court. She never tried a case and, in all likelihood, had almost no contact with defendants.

    Rarely has anything so insignificant been turned into such a big deal.

    1. SHG Post author

      When you take a job as a PD or ADA, it usually involves a 3 year commitment, during which you start to learn that which you’ll understand a decade or two later.

  4. SamS

    Both Biden and Trump did something rare: Each told us what kind of person they were going to nominate and then nominated them. I hope the Republicans treat Brown Jackson with more respect, courtesy and regard for the truth than Democrats did with Trump’s nominees.

      1. SamS

        I should have been more explicit. For Biden, I meant “woman of color” and for Trump from his list supplied by the Federalist Society.

        1. SHG Post author

          Trump said he would pick a judge from a list supplied by the Federalist Society? I don’t believe so, and I’m fairly certain that was a claim by his adversaries and the FedSoc didn’t supply a list. That doesn’t mean others didn’t provide names of judges, but not FedSoc.

          1. SamS

            I think you are right. I worked from memory (not always a good thing to do). I took the claim by his adversaries as gospel, again not a good thing to do.

      2. notSamS

        I’m not SamS, but I assume “what kind of person” just means that Trump released a short list, and Biden said he’d nominate a black woman. And then when vacancies arose, Trump nominated from his short list (which was adjusted over time), and Biden nominated a black woman.

        I think previous presidents tended to speak in broader platitudes during the campaign, if they addressed Supreme Court vacancies at all. Reagan may have pledged to nominate a woman before he was elected, but I don’t know or remember. I remember Obama mostly saying he wanted “empathy.” By that standard, what Biden and Trump did was indeed rare.

        Or maybe I’m misreading the comment.

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