Judge Ketanji Brown Jackson’s Historic Confirmation to the Supreme Court

For the first time in the 233-year history of the Supreme Court, a Black woman will join the Bench of our nation’s highest court: on April 7, 2022, the Senate voted 53-47 to confirm Judge Ketanji Brown Jackson to replace retiring Justice Stephen Breyer. Soon-to-be Justice Jackson’s ascension also marks the first time in history where 4 of the 9 justices are women. There have been 115 justices since the Court’s formation in 1790, and all but 7 have been white men.

Trailblazing is not new for Judge Jackson: when she became a clerk for Justice Breyer in 1999, less than 2 percent of the high court’s clerk were Black.^[1] When she was appointed as a District Judge in 2013, Black women made up about 1 percent of all judges to ever sit on the federal bench.^[2] And in both 2010 and 2020, Black people represented only 5 percent of all active lawyers.^[3] Judge Jackson acknowledged the significance of her nomination in her nomination remarks: “I am standing on the shoulders of my own role models—generations of Americans who never had anything close to this kind of opportunity, but who got up every day and went to work believing in the promise of America.”^[4] Judge Jackson specifically referenced her personal hero, Judge Constance Baker Motley, the first Black woman to become a federal judge. Judge Motley inspired Judge Jackson’s professional journey, and the two women even share a birthday.

Judge Jackson Is Exceptionally Qualified.

Judge Jackson’s depth of experience exceeds that of all the sitting justices, including Justice Breyer: she is the only justice who has a public high school and Ivy League law school education, clerked at the Supreme Court, served on the U.S. Sentencing Commission, worked as a public defender, and served as both a District Judge and a judge on the Court of Appeals.^[5]

Significantly, Judge Jackson will be the first justice with experience as a public defender, and the first justice with significant experience as a criminal defense attorney representing indigent defendants since Justice Thurgood Marshall.^[6] Alicia Bannon, director of the Brennan Center for Justice’s Judiciary Program, notes that “[w]hat judges see is often shaped by the experiences that they had . . . Having to navigate the criminal justice system on behalf of poor defendants gives a judge an important perspective on how the criminal justice system operates and on the potential unfairness or hurdles within it.”^[7]

Three of the current nine justices are former prosecutors, highlighting the need for Judge Jackson’s different perspective in analyzing whether criminal defendants’ rights are being upheld in the lower courts.^[8] Judge Jackson also has more experience as a federal trial court judge than any other sitting justice.^[9] This experience is invaluable given the volume of criminal cases heard by the Supreme Court: in 2020, 14 percent of the Court’s cases were criminal, and in 2019, criminal cases made up 20 percent of the docket.^[10] Alexis Karteron, an associate professor of law at Rutgers Law School, believes Judge Jackson’s background will empower her to discuss the nuances of Supreme Court cases in a way that is easily digestible for the lower courts.^[11]

The Confirmation Process.

The nomination and confirmation process find its roots in Article II, section 2, of the Constitution, which states that Presidents “shall nomainate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the Supreme Court . . . .” When the President nominates a candidate, the nomination is sent to the Senate Judiciary Committee for consideration.^[12] The Committee holds a hearing on the nominee, where witnesses supporting and opposing the nomination present their views.^[13] Senators then question the nominee on her qualifications, judgment, and philosophy.^[14]

Past confirmation hearings have faced criticism as empty rituals, but complaints in the past mostly focused on nominees’ failure to answer questions about how they may rule on issues.^[15] Judge Jackson’s nomination hearing was noticeably different. “One thing that is striking about this hearing is how little effort we are seeing to engage the nominee on her views about actual legal issues,” said Lori A. Ringhand, a law professor at the University of Georgia and an author of Supreme Court Confirmation Hearings and Constitutional Change.^[16] Here, senators focused questions on Judge Jackson’s credentials and biography, her work as a public defender, whether some of her criminal sentences were too lenient, and whether children should be taught about legal concepts that are analyzed in law schools.^[17]

In contrast, questioning at earlier confirmation hearings focused on the nominee’s views on legal issues like whether there is a constitutional right to abortion, the scope of executive power in combating terrorism, investigations into presidential misconduct, and the constitutionality of the Affordable Care Act.^[18] Nominees almost uniformly evaded giving definite answers, but at least the questions gave them the opportunity to demonstrate their familiarity with relevant decisions, statutes, and doctrines at issue in the Supreme Court.^[19] This “tone of intellectual seriousness” was virtually absent in Judge Jackson’s hearings. As a result, Professor Ringhand noted that it was difficult to assess Judge Jackson’s performance by the typical “nonresponsive” metric from past confirmation hearings: “It is hard to evaluate how responsive she is being relative to other nominees, because so few of the senators’ comments are asking concrete questions about legal issues. Instead, we are seeing senators using their time to air disputes with each other, and with the president. That type of bickering always plays some role at the hearings, but there seems to be much more of it this time.”^[20]

The partisanship displayed during Judge Jackson’s hearing undermines the public confidence in the Supreme Court and calls into question the utility of the process. Professor Ringhand explains that these hearings “are at their best when senators ask real questions about law, and nominees take the opportunity to explain their perspectives.”^[21] In 2016, Chief Justice Roberts explained how partisanship hurts the Supreme Court’s authority and legitimacy: “When you have a sharply political, divisive hearing process, it increases the danger that whoever comes out of it will be viewed in those terms. If the Democrats and Republicans have been fighting so fiercely about whether you’re going to be confirmed, it’s natural for some member of the public to think, well, you must be identified in a particular way as a result of that process.”^[22]

The confirmation process was not always as partisan as it is today. In 1993, the Senate confirmed Justice Ruth Bader Ginsburg by a vote of 96 to 3, and in 1986, it confirmed Justice Antonin Scalia 98 to 0. The tone set by the Senate Judiciary Committee influences the ultimate votes and the overall tone of the process. Here, the Senate Judiciary Committee appeared to abandon its stated mission to analyze the qualifications, judgment, and philosophy of Judge Jackson, and many believe they failed to do so with other recent nominees. To protect the rule of law and the integrity of our legal system, and the public confidence in our courts, we hope that Judge Jackson’s nomination hearing serves as an outlier, and that the confirmation process for future nominees serves its Constitutional purpose of vetting qualified candidates.

Author: Jenn French is Of Counsel at Patterson Law Group, APC, a San Diego based commercial litigation firm that focuses on complex class action litigation, including consumer protection, privacy, and employee rights. She serves on CLA’s Racial Justice and Federal Courts Committees. This article reflects her opinions and does not necessarily reflect the opinion of the California Lawyer’s Association. The publication of this article does not constitute an endorsement of the opinions expressed in this article.

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[1] See Ketanji Brown Jackson will be the first Black woman justice. Here’s how she will change the Supreme Court,https://19thnews.org/2022/04/ketanji-brown-jackson-confirmed-supreme-court-justice/?utm_source=The+19th&utm_campaign=339c79619e-19th-newsletters-daily-0408&utm_medium=email&utm_term=0_a35c3279be-339c79619e-382381868 (last visited April 8, 2022).

[2] Id.

[3] See ABA Profile of the Legal Profession: Diversity and Well-Being, https://www.2civility.org/aba-profile-of-the-legal-profession-diversity-and-well-being/ (last visited April 8, 2022).

[4] See https://www.cnn.com/politics/live-news/ketanji-brown-jackson-biden-harris-speech/index.html (last visited April 8, 2022).

[5] See How Ketanji Brown Jackson’s path to the Supreme Court differs from the current justices, https://www.washingtonpost.com/politics/interactive/2022/ketanji-brown-jackson-school-career/ (last visited April 8, 2022).

[6] Id.

[7] Id.

[8] See footnote 1.

[9] Id.

[10] Id.

[11] Id.

[12] See Supreme Court Nominations Research Guide, https://guides.ll.georgetown.edu/c.php?g=365722&p=2471070 (last visited April 8, 2022).

[13] Id.

[14] Id.

[15] See Confirmation Hearings, Once Focused on Law, Are Now Mired in Politics, https://www.nytimes.com/2022/03/23/us/politics/ketanji-brown-jackson-confirmation-hearing.html (last visited April 8, 2022).

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] See Inside the Supreme Court, https://www.c-span.org/video/?404131-1/discussion-chief-justice-john-roberts (last visited April 8, 2022).