Supreme Court and Judge Kitanji Brown-Jackson

The Court

President Joe Biden created another opportunity to make American history when, on February 25, 2022, he took to the presidential podium to nominate Judge Kitanji Brown Jackson to The United States Supreme Court. Judge Brown Jackson is the first African American woman to ever receive the honor of a nomination to America’s highest court since the court’s founding 233 years ago. When confirmed, Judge Brown Jackson will be the only African American woman to serve on The United States Supreme Court. The once-in-a-lifetime opportunity was made possible by the voluntary retirement of liberal Justice Stephen Breyer after 27 years of service on the court. This retirement comes on the heels of three conservative appointments to the court by the previous administration. The latter appointment occurred when a beloved Justice Ruth Bader Ginsberg died at age 87 during a Republican administration, creating a vacancy on the court for a conservative appointment. Justice Bader Ginsberg declined calls by the Obama administration to retire in 2014, during a time when Democrats controlled the presidency and the Senate. In today’s political climate both are required to confirm and appoint a Supreme Court nominee. Judge Bader Ginsberg’s retirement would have solidified a replacement for her seat with a liberal judge who could serve for decades. Instead, her seat was filled by conservative Justice Amy Coney Barrett. 

 

Bader Ginsberg, like most Democrats, likely felt sure that Hilary Clinton would win the 2016 presidential election, but this miscalculation pathed the way for a conservative super majority of 6-3 the court. When confirmed, Brown Jackson will maintain the 6-3 dynamic on the court because she is replacing a liberal judge. This move by Democrats will hold the current balance of the court, in hopes that one or more vacancies by conservative judges will happen during Democratic administrations, while they also hold a Senate majority. This historic nomination is a welcome win for Democrats as they look ahead to November midterms. The nomination of Judge Brown Jackson gives Democrats a record of representation to run on for the Democratic base of African American women, who Democrats desperately need to engage to maintain their 50-50 Senate hold. Her nomination highlights the importance of Democratic control of the Senate and the ripple effect each branch of government has on the other. Voters who elect presidents and congressmen and women are the first domino in this effect. 

The Process 

The confirmation of federal judges occurs in the Senate through confirmation hearings conducted by the committee of the judiciary. The committee of the judiciary is composed of twenty-two members. These twenty-two members, eleven from each party, are assigned by their party leadership based on rank and experience. The majority party’s senior member becomes the Chair of the committee and the minority party’s senior member is acknowledged as the ranking member. Only those assigned to the committee of the judiciary are allowed to question the nominee during confirmation hearings. The rest of the Senate has to wait until their individual interviews to question the nominee. The nominee acts as a witness during the confirmation hearing and is supported by other expert witnesses to attest to the merits of the nominee’s confirmation.

The process between nomination and confirmation is one that begins long before a Judge is ever nominated to The Supreme Court. Eight of the nine Supreme Court justices today received their J.D.’s from either Harvard University or Yale University. Seven of the nine justices earned their undergraduate degrees from Ivy League schools. All nine sitting Justices were nominated to serve on a United States Court of Appeals before receiving their nominations to serve on the highest court. Because nominations to federal appellate courts also require Senate confirmation, nominating from a pool of federal judges who have already passed Senate confirmation generally guarantees that a nominee can be confirmed by the Senate once more. Judge Kitanji Brown Jackson replaced Attorney General Merrick Garland on the United States Court of Appeals for the District of Columbia. In 2016, Attorney General Merrick Garland was nominated for the Supreme Court by President Obama to replace conservative Justice Antonin Scalia, who died in 2016. After the 2014 midterm elections Republicans gained control of the Senate and Judge Garland was infamously denied a confirmation hearing by then, Republican Senate Majority Leader Mitch McConnell. 

The Nominee 

Judge Kitanji Brown Jackson was born in Washington, D.C. on September 14, 1970. She grew up in Miami, Florida. She has a husband whom she met at Harvard. The couple has two daughters. Judge Brown Jackson received her B.A. and J.D. from Harvard University. Judge Brown Jackson’s record is a moderate one, always sticking to the confines of the laws passed by congress. When confirmed later this week, Judge Brown Jackson will be the first supreme court justice since Justice Thurgood Marshall to have career experience in the sphere of criminal justice. She will also be the first supreme court justice to work as a public defender. Confirming a judge with criminal justice experience diversifies the bench and enhances the court with a connection with experience representing the most underserved Americans. This special experience will showcase a new tone on decisions by the court. Even if this voice is in the dissent, it will be heard, represented, and recorded. Judge Brown Jackson has nine years of experience serving as a federal judge. Judge Brown Jackson was nominated by President Biden to replace Attorney General Merrick Garland on the Court of Appeals for The District of Columbia. She was confirmed by the Senate in 2021 and has served in the appellate court since that time. During her tenure as a federal judge, Judge Brown Jackson ruled moderately and within the confines of the law, as established by the legislative branch.

The Landscape

To be confirmed, a supreme court nominee only requires what is called a simple majority in the senate. Although Democrats do not technically hold a majority in the Senate, their 50-50 tie with Republicans means that the president of the senate can give Democrats the push they need to attain a simple majority of 51/100 senators.  As the Vice President of the United States and thereby the president of the Senate, Vice President Kamala Harris would step in with the deciding vote as she has with other bills and legislation that required a tie-breaking simple majority.  Although witnessing the first African American woman Vice President confirm the first African American woman to the Supreme Court would be iconic for the culture, in the case of confirming Judge Brown Jackson, this tie-breaker may not be necessary. All 50 Democratic senators, including Senator Joe Manchin of West Virginia, have signaled that they plan to confirm the nominee. Republican Senator Susan Collins of Maine, who voted to confirm Judge Brown Jackson to her seat on the Court of Appeals for the District of Columbia, has also signaled that she plans to vote in favor of the confirmation. All 50 Democrats and Senator Collins comprise the simple majority necessary for Judge Brown Jackson without the intervention of Vice President Harris. Senator Lindsey Graham of South Carolina joined Collins in support of confirming Judge Brown Jackson last year but Senator Graham announced last week that he will vote against the confirmation of Kitanji Brown Jackson. Just this Monday, Senator Murkowski of Alaska and Utah Senator Mitt Romney joined Senator Collins, voting in favor of Judge Brown Jackson in a procedural vote to break a deadlock within the committee of the judiciary. 

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The Confirmation Hearings

Judge Kitanji Brown Jackson’s confirmation hearings began on March 21, 2022, and ended after four days of testimony on March 24, 2022. During the confirmation hearings, Judge Brown Jackson fielded questioning by Democratic and Republican senators. Republicans’ questioning of Judge Brown Jackson was widely condemned by Americans. In a recent Quinnipiac poll, 52% of Americans voiced disapproval towards the manner and style of Republicans during the confirmation hearing. In that same poll, 51% of Americans voiced approval for Judge Kitanji Brown Jackson’s confirmation. (Quinnipiac, 2022) On the second day of confirmation hearings, Republican Senator Marsha Blackburn asked Judge Brown Jackson to “define the word woman”. This was one of multiple efforts to dog whistle to Republican voters. From Texas to Florida, Republican-led state legislatures across the country have advanced and signed into law bills restricting LGBTQIA+ freedoms of expression and access to gender-affirming resources for trans children. In the case of Florida, Governor Desantis signed into law a bill that prohibits the mention or acknowledgment of LGBTQIA+ identity in schools. Republicans also attacked Judge Brown Jackson’s record on crime, suggesting she has been too lenient on crime, another dog whistle in Republican politics. These accusations were perceived by most Americans as political theater and an attempt by Republicans to exploit the White implicit bias to associate anyone with brown skin, even federal judges, as complicit in criminal activity. After a brief deadlock vote of 11-11 within the committee of the judiciary, the majority leader of the Senate, Chuck Schumer, called for a vote on the floor of the Senate. All 50 Democrats and three Republicans voted in favor of advancing the vote for confirmation to the full Senate. 

Confirmation

Judge Kitanji Brown Jackson’s inevitable confirmation comes this week during a time when a conservative majority on The Supreme Court has weakened Americans’ confidence in the court’s ability to protect human rights freedoms. While her confirmation to the court will not shift the court back toward a liberal majority, it guarantees that Justice Breyer’s seat will be filled with a judge who will be able to serve for generations to come. The significance of Judge Brown Jackson’s nomination comes as another milestone for African American women in this country. Without Black women, the democratic party would not have pushed President Biden to victory in the primary and general elections of the 2020 elections. An aspect of the relationship between Black voters and politicians is the idea that once voted into office, politicians forget who brought them to the dance. While progressive voters and representatives within the democratic party criticize the establishment democratic legislature for stalling opportunities to protect voting rights while they control both houses of Congress, President Biden continues to appoint and nominate African American women to positions throughout his campaign and administration. Judge Kitanji Brown Jackson is a legacy of this respect for the significance of the African American woman’s support of the democratic party that will outlast the Biden administration and the 117th Congress. 

 

Featured photo: Kitanji Brown-Jackson

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