Legal and Regulatory

Supreme Addition: Ketanji Brown Jackson Confirmed to the Supreme Court

Kentanji Brown Jackson’s Supreme Court confirmation provides a historic win for Democrats—and foreshadows partisan stalemates.
By Shreya Kanal
June 6, 2022
Topics
Legal and Regulatory

On Feb. 25, 2022, President Joe Biden announced his nomination of Judge Ketanji Brown Jackson to fill the Supreme Court seat of retiring Associate Justice Stephen Breyer. Jackson, 51, who was confirmed by the Senate in a 53-47 vote on April 7, will be the sixth female justice in the court’s history, the third African-American and the first to have served as a federal public defender. Jackson’s nomination and successful confirmation to the Supreme Court is historic in many ways, most notably that she will be the first Black woman to serve on the nation’s highest court.

Jackson’s confirmation also serves as a much-needed win for the Biden administration and Democrats, who continue to face troubling poll numbers leading into the 2022 midterm elections. Prior to the confirmation victory, the Democratic legislative agenda was stalled after failing to pass Biden’s Build Back Better agenda. With Jackson’s confirmation, Democrats received welcome relief from congressional realities, while President Biden also delivered on a key 2020 campaign promise to place a Black woman on the Supreme Court.

Jackson’s ascension to the bench began in 2012, when she was nominated by then-President Barack Obama to join the U.S. District Court in Washington, D.C., and eventually confirmed by voice vote in March 2013. She was later nominated by President Biden to serve on the United States Court of Appeals for the D.C. Circuit, with Republican Senators Lisa Murkowski, Alaska; Susan Collins, Maine; and Lindsay Graham, S.C., supporting her confirmation in June 2021.

Similarly, three Republican senators voted in favor of Jackson’s Supreme Court confirmation: Collins, Murkowski and Mitt Romney, Utah. The vote provided the new justice with more bipartisan support than the previous two Republican-appointed justices received, with Brett Kavanaugh and Amy Coney Barrett being confirmed 50-48 and 52-48, respectively.

Unlike any previous Supreme Court justice, Jackson has a public-defense background, having served as assistant special counsel to the U.S. Sentencing Commission from 2003 to 2005 and as the commission’s vice chair from 2010 to 2014. From 2005 to 2007, she worked as an assistant federal public defender in Washington, D.C.

While Jackson was able to again gain bipartisan support for her confirmation, the Senate Judiciary Committee hearings conducted during her nomination highlighted the ongoing partisan divide facing Supreme Court nominees in the future, as well as the challenges that presidents will face when a Supreme Court nominee again comes before a Senate controlled by an opposite party than the White House. Senate Republican Leader Mitch McConnell, Ky., has often been criticized for his handling of President Barack Obama’s March 2016 nomination of Merrick Garland to fill the vacancy following the unexpected death of Antonin Scalia ahead of that November’s presidential election. With Republicans then in control of the Senate, McConnell argued that “the nomination should be made by the president the people elect in the election that’s underway.”

Some of those in Congress have argued that, while it is the Senate’s responsibility to provide “advice and consent” as stated under the U.S. Constitution, ultimately they must give deference to the president, regardless of political party, when it comes to the nomination of otherwise qualified individuals to serve on the Supreme Court. However, in March of this year, McConnell expressed his view that a majority of the Senate on both sides of the aisle “believe it is a co-partner with the president in the business of confirming lifetime appointments,” illustrating that ideological and political lines have been drawn by Republican leadership when it comes to the support for these nominations.

McConnell has also refrained from commenting on his strategy should another Supreme Court vacancy occur under President Biden with Republicans having regained control of the Senate in 2023. To preempt this potential stalemate, Democrats have focused on Associate Justice Clarence Thomas, who was confirmed under President George H.W. Bush and is the longest-serving justice currently on the Supreme Court.

While McConnell has chosen to say silent on the matter for now, it should be little surprise following the polarization of Congress, the treatment of recent nominees to the court as well as the political and media frenzies that have surrounded Supreme Court nominees that without a Senate majority of the same party, presidents are set to face fervent opposition.

Unlike Barrett, a conservative who replaced liberal Associate Justice Ruth Bader Ginsburg, Jackson will replace the ideologically similar Breyer, which will not alter the spectrum of the court, maintaining a 6-3 split in favor of GOP-appointed justices. This will play an important role on the impact of President Biden’s regulatory agenda over the next two-and-a-half years.

However, in an era of intense partisan divide, the fact remains that President Biden was able to replace the 83-year-old Breyer and gain support from both parties to confirm a Supreme Court Justice—one who is likely to serve decades on the bench while making history.

by Shreya Kanal

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