What To Expect From Biden’s Supreme Court Nominee

After 27 years as a Supreme Court Justice, Stephen Breyer decided to retire late in January of this year.  Breyer, at 83 years old, was originally appointed by President Bill Clinton in 1994, and is the oldest member of the Court at present. Breyer’s decision does not appear to have been spontaneous. “Liberal activists have urged him for months to retire while Democrats hold both the White House and the Senate… Erwin Chemerinsky, dean of the University of California Berkeley School of Law, urged Breyer to retire in a Washington Post op-ed article in May…(t)he progressive group Demand Justice hired a truck last year to drive around Washington with the sign: ‘Breyer Retire. It’s time for a Black woman Supreme Court justice.'” Did Joe Biden happen to see that truck while wandering around DC? Probably not –  “On the campaign trail, Biden vowed to nominate a Black woman should a Supreme Court vacancy arise, a pledge he reaffirmed after Breyer’s announcement.” According to The Hill, “Biden said he would consult with senators from both parties, leading legal scholars and Vice President Harris before settling on a nominee…’I will listen carefully to all the advice I’m given, and I’ll study the records and former cases carefully…I’ll meet with the potential nominees, and it is my intention…to announce my decision before the end of February.'” True to his word, at the end of February, President Biden picked Ketanji Brown Jackson – a black woman – as his nominee to replace Breyer on the US Supreme Court. According to Ballotpedia, Brown Jackson was “born in 1970 in Washington, D.C.  She then moved with her family to Florida, where she graduated from Miami Palmetto High School in 1988. She received a bachelor’s degree in government, magna cum laude, and a J.D., cum laude, from Harvard University in 1992 and 1996, respectively. She served as the supervising editor of the Harvard Law Review from 1995 to 1996.”  She has served as a Law Clerk to Justice Breyer; has been a federal public defender; was appointed to be a Judge of the Federal District Court in DC in 2013 by President Obama; and was elevated to the DC Federal Court of Appeals in 2021 by President Biden.  Both times, she passed Senate confirmation without difficulty. On the surface, Brown Jackson would seem to be a candidate who could garner a good deal of bipartisan support.  But according to Fox News, “(m)issing (from most news reports) are details like her work drafting an amicus brief on behalf of pro-abortion organizations in a buffer zone case in which she repeatedly disparaged the peaceful and often prayerful clinic protesters as engaging in ‘in-your-face’ and ‘chaotic’ activity that somehow fell short of ‘pure speech.’ She also represented several Guantanamo Bay detainees as a public defender and continued that representation on a pro bono basis after moving back to private practice. That was before her tenure as vice chair of the United States Sentencing Commission, during which the Commission reduced its sentencing recommendations for crack-cocaine offenses, advocated the repeal of mandatory-minimum sentences, and raised concerns about demographic disparities in sentencing.” These actions while in her legal practice reveal someone with a clear left of center viewpoint.  But it is Brown Jackson’s record as a judge that reveal a few things about her judicial philosophy that may be of concern to Constitutional conservatives. According to BuzzFeed.News, “(a)s a district court judge, Jackson presided over a set of challenges by federal labor unions to three executive orders issued by Trump that gave agencies new directives about how they should handle collective bargaining. Jackson in August 2018 rejected the administration’s argument that the court lacked jurisdiction over the case and ruled that the bulk of the challenged orders violated federal law…The DC Circuit later reversed her on the front-end jurisdiction issue and dismissed the case.” In September of 2019, “a coalition of immigrant rights group’s challenged the Trump administration’s plan to expand the category of undocumented immigrants eligible for fast-track deportations…(Brown Jackson) issued a preliminary injunction blocking the changes…(t)he DC Circuit later reversed Jackson’s injunction.”  Further, “(i)n October 2020, Jackson sided with immigrant advocacy groups who sued the Trump administration over a lesson plan used to train federal immigration officers who screen potential asylum seekers slated for fast-track deportations. The challengers argued the language adopted in 2019 wrongly raised the bar too high for the initial round of vetting to see if a person had shown a ‘credible fear’ of persecution in their home country. Jackson agreed. The Justice Department decided not to pursue an appeal. “One of Jackson’s most famous decisions came in late 2019, when she concluded that then-president Donald Trump’s first White House counsel Don McGahn could not claim absolute immunity against a congressional subpoena to testify in the Russia investigation…(b)acked by the Justice Department under Trump, McGahn argued that current and former senior advisers to the president enjoyed absolute immunity against congressional subpoenas, that the president had the final word on when to assert that immunity, and that courts lacked authority to intervene. Jackson rejected all of the DOJ’s positions. Her opinion was stacked with sweeping declarations about how every person, including the president, ultimately is bound by the law… The case ping-ponged around the DC Circuit for the next year and a half on the question of whether the court had authority to hear it.  The first time it went up on appeal, a three-judge panel ruled 2-1 to dismiss the case, but then the full court sided with Jackson and ruled it could go forward. The Trump administration raised a second challenge on different grounds, and the DC Circuit again ruled 2-1 to toss it out. Before the full court could weigh in again, McGahn reached an agreement to testify, ending the legal fight.” Much like her activities as a lawyer, these decisions while on the DC bench show a pattern of sympathy towards progressive priorities, such as allowing faster acceptance of illegal immigrant applications for asylum, and the manipulation of federal law to support outcomes that either blocked action by the Trump Administration, or forced Trump Administration members to testify in the now-discredited investigation into “Russian collusion.” Perhaps Joe Biden really did  “study the records and former cases carefully” before selecting his nominee. Like Sen. Roger Wicker (R-MI), it would be easy to dismiss Joe Biden’s nominee as “a ‘beneficiary’ of affirmative action.”  However, such a simplistic view ignores the fact that even if Brown Jackson did receive opportunities for advancement due to her status as a black woman, she still had to do the work required to maintain those positions.  Her record as a lawyer and a judge, while exhibiting a leftward, anti-Trump slant, cannot be minimized so easily. Of course, Brown Jackson is smart enough not to tell you in advance how she will rule as a Judge. During her confirmation hearings for the DC Court of Appeals, when asked to “describe the importance you place on working with colleagues who may have different views,” Brown Jackson stated that “(b)ecause the D.C. Circuit often address complicated and potentially contentious legal issues, the ability to listen with an open mind to other points of view, and to be respectful even if a judge ultimately disagrees with another judge’s analysis or conclusions, is crucial to the effective operation of the court, and, ultimately, maintains public trust in the court as an institution.” Nonetheless, given her published opinions, Brown Jackson will no doubt serve as another progressive voice on the Court, chipping away at the measures taken by Republican Administrations and the laws enacted by Republican Congresses for decades. As in the McGhan case, she will use “sweeping” legal language and broad concepts to disguise her real motivations. Unlike Ruth Bader Ginsberg, who exhibited “a view that progress toward equal justice and greater liberty, when carried out by courts, is more likely to last when it is taken in small, careful steps rather than via radical changes,”   you can instead expect Brown Jackson to be “a judge who will deviate from the text of the Constitution and statutes without hesitation to ensure the left’s preferred policy outcomes.” Judge John Wilson (ret.) served on the bench in NYC.