As usual, President Biden’s promises to his party’s left wing and its interest groups left him little room to maneuver. His choice of Ketanji Brown Jackson is an uninspired one, but unless Republicans turn up an unexpected bombshell in her past, she will probably get confirmed.
Biden in 2020 pledged to pick the first African-American woman on the court, which at one stroke excluded 97% of the candidates from the job just based on their race and gender. Left-wing groups lobbied for Jackson because she had worked as a public defender and was seen as more sympathetic to criminal defendants. She also got attention in cases ruling against Donald Trump.
Jackson has two Harvard degrees, served a Supreme Court clerkship for Breyer and is an experienced trial judge, but she is not a lively or persuasive legal writer or a scholar. Biden and Democrats don’t expect her to have a consistent theory of how to read the Constitution and laws; they just want results. Introducing Jackson, Biden talked about “a pragmatic understanding” of a “resilient” Constitution — code for doing whatever Democrats want instead of what the Constitution says.
At her White House introduction, Jackson distanced herself from the rhetoric of the Democrats’ socialist wing. She opened by thanking God, talked about 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 by marriage to former House Speaker Paul Ryan. But nothing in her record suggests that she will vote any differently on the Court from any other left-winger.
Jackson also has a problem in the biggest case on the court’s term next year, a challenge to anti-Asian race discrimination in admissions to Harvard in the name of “diversity.” Jackson has served for years on Harvard’s Board of Overseers and should be expected to recuse herself from the case.
With 50 votes in the Senate and Vice President Kamala Harris to break ties, Democrats can get Jackson confirmed without a single Republican vote if they stay united. Three Republicans voted to put Jackson on the DC Circuit federal appeals court last year, but one of those (Lindsey Graham) sounds likely to oppose promoting her further.
In 2018, the Democrats’ character assassination campaign against Brett Kavanaugh blew up 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 comparatively few hot-button questions in 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 could live to regret his choice. The 51-year-old Jackson would join a court with a 6-3 majority of Republican appointees where the oldest justice, Clarence Thomas, is 73. Health permitting, it could be a long time before there is another vacancy. Of the two liberals on the court, Elena Kagan has worked strategically to build bridges to Chief Justice John Roberts and other, more conservative justices, while Sonia Sotomayor prefers to dissent bitterly, sometimes alone. If Jackson takes the Sotomayor path, that could mean more cases where all they accomplish is getting outvoted.
