By Jessie Seigel / Washington, D.C.
Promise made. Promise kept. On February 25, President Biden fulfilled his campaign pledge to appoint a Black woman to the Supreme Court, announcing his nomination of Judge Ketanji Brown Jackson to replace Justice Stephen Breyer when he retires at the end of this term. If confirmed, Judge Jackson, currently on the U.S. Court of Appeals for the District of Columbia, will be the first Black woman to sit on the court, an historical landmark that carries with it important symbolism.
In announcing the nomination, the president said, “For too long, our government, our courts, haven't looked like America.” He added, “I believe it's time that we have a court that reflects the full talents and greatness of our nation with a nominee of extraordinary qualifications, and that we inspire all young people to believe that they can one day serve their country at the highest level.”
Sheryl Guinn, president of the NAACP Nashville Chapter, addressed the symbolic importance of Jackson’s nomination, telling Nashville News Channel 5, "It was literally illegal for us to read and now we're sitting on the highest court of the land... and making decisions that you and all of your family have to follow." Guinn added, "When you see someone that looks like you in places it reminds you that I really can get to those other places. Those really can be goals for me. It's not something that's off limits."
Judge Jackson’s nomination has led me to reflect on my own legal career. I started law school in 1974, two decades before Judge Jackson, when it was much harder for women to enter the legal profession. If I remember correctly, in my first year, only 18 percent of my entering class at the University of Michigan Law School were female. Some third-year male students observed at the time that when they had started, three years before that, there had been only three women in their class.
And though I am not Black, given the dearth of women in the profession at the time, one would expect that I would have had reactions, similar to those Guinn describes, about legal role models for women. But, while growing up, it never occurred to me that because Clarence Darrow (my initial inspiration) was male, he was not a model for my aspirations.
I even took the unequal accommodations in the law quad—the law school’s version of dormitories—in stride. In my first year there, we women had to walk through a large men’s restroom containing urinals to get to the laundry room. Some women felt embarrassed by this. My own reaction was, I’m fully dressed. If some guy is not—he’s the one who should be embarrassed. By the time we graduated, there were separate restrooms for men and women and a hall between the two, leading to the laundry room. Progress!
Perhaps the complete sense of equality within my family made me oblivious to the reality that discrimination against women would be an obstacle for me. Although my brother recently told me that my mother worried for me and thought me very brave to pursue a legal career, the only things she said to me were, “You know it’s going to be harder because you’re a woman,” and “are you sure? It sounds so boring.” Both cautions went in one of my ears and right out the other. By that time, I had not only Clarence Darrow but such TV shows as the flashy Judd for the Defense and the idealistic The Young Lawyers dancing through my head.
But my nearly 30-year career was spent at administrative agencies, not in the courtroom. I began my legal work at the Interstate Commerce Commission, regulating railroads and the rates they could charge for transporting goods. There, I discovered that legal analysis could be complex, intellectually challenging, and deadly boring at the same time. Most of my career, however, was spent at the Federal Energy Regulatory Commission, regulating hydroelectric projects. This was a bit more interesting since it largely involved environmental issues. Nevertheless, one point goes to my mother for her perspicacity about the nature of law. As for her other point…
I was very lucky that the women’s movement came along, changing the country, just as I was coming of age to apply to law school—or I probably would have had a rude awakening. I remember one female classmate telling me that she had originally become a teacher rather than pursue her dream of being an attorney, because the University of Michigan Law School, for the main part, did not admit women. She was 35 years old before our law school finally was forced to let women in, allowing her to fulfill her dream.
In my personal reaction to the uneven situation in the profession, I am likely an outlier as relates to the need for role models who are of one’s own race, gender, or background. But for those who need such examples in order to aspire to great things—what a model Ketanji Brown Jackson is already!
I was a good attorney—very good at my work—but comparing myself to Jackson would be like comparing a housepainter to Leonardo da Vinci. It troubles me to see more emphasis on her being a first than on her brilliance.
So, let’s introduce ourselves to this amazing person in all her breadth.
Ketanji Brown Jackson’s Background
Judge Jackson was both gracious and modest in her acceptance of the Supreme Court nomination. She said she was “humbled by the extraordinary honor.” She also praised the soon-to-depart Justice Breyer, for whom she clerked in 1999, saying that he “exemplified every day in every way that a Supreme Court justice can perform at the highest level of skill and integrity, while also being guided by civility, grace, pragmatism and generosity of spirit.” Furthermore, addressing him directly, she said: "Justice Breyer, the members of the Senate will decide if I fill your seat. But please know that I could never fill your shoes."
I disagree. I think that Ketanji Brown Jackson has a perception grounded in a variety of family influences and legal experience that will see her more than fill Breyer’s shoes. I predict that if Jackson is confirmed, through her understanding of humanity and of law, this comparatively young 51-year-old justice will, in the course of her career, surpass Breyer.
In 2013, when Justice Breyer honored Judge Jackson by swearing her in as a federal district court judge, he said, “She sees things from different points of view, and she sees somebody else’s point of view and understands it.” It is likely Jackson’s breadth of experience that enables her to see things from those different viewpoints.
Jackson was born in Washington D.C. but raised in Miami. Her parents were schoolteachers. Her father later went to law school and became an attorney with the Miami-Dade County School Board, and her mother became a principal at a public magnet school.
According to The New York Times, “One of young Ketanji’s earliest memories was sitting side by side in the evenings with her father when he was in law school — him with law books, her with coloring books.” In her acceptance of Biden’s nomination, Judge Jackson said, "I watched him study and he became my first professional role model."
One of Judge Jackson’s uncles was Miami’s police chief; another was a sex crimes detective; and her younger brother, now an attorney, worked for the Baltimore police in undercover drug stings, and served in Iraq following 9-11.
On the other hand, her uncle, (her father’s older brother) was sentenced to life in prison in October 1989 for possession of cocaine with intent to distribute. According to Scotus Blog, while Jackson was working as a public defender, he asked her for help and Jackson referred him to the law firm of WilmerHale, which was handling clemency cases free of charge. The firm filed a clemency petition on his behalf and in 2016, President Barack Obama commuted his sentence along with a number of other nonviolent drug offenders. He died soon after his release.
Jackson is married; her husband, Patrick Jackson, is a gastrointestinal surgeon at MedStar Georgetown University Hospital in Washington, D.C., and the couple have two daughters.
Judge Jackson graduated from Harvard College magna cum laude in 1992 and from Harvard Law School in 1996. During her time in law school, she was a supervising editor for the Harvard Law Review. (President Obama was the first black president of the law review in 1990.)
Jackson’s legal career has been diverse—more so than those currently on the Supreme Court. Before becoming a federal judge, she spent time as a private-practice attorney, an assistant federal public defender, and vice chair of the U.S. Sentencing Commission, an independent agency that provides sentencing guidelines for federal courts.
While on the Sentencing Commission, Jackson and other commissioners voted in 2011 to apply a law easing penalties for crack cocaine possession retroactively. According to The Wall Street Journal, “At the meeting taking up the vote, she spoke at length at what she described as the gross injustice of the prior policy of treating offenders trafficking in powder cocaine more leniently.” Likely an awareness of her uncle’s situation gave Jackson an added insight into the importance of her fairness argument.
Last year, during her confirmation hearing for the U.S. Court of Appeals for the District of Columbia, Jackson said that, as a trial judge, she took care to make sure that defendants understood what was happening in the legal process: “I think that’s really important for our entire justice system because it’s only if people understand what they’ve done, why it’s wrong, and what will happen to them if they do it again that they can really start to rehabilitate.” This supremely intelligent, down-to-earth understanding of the effect of our justice system would be a tremendous boon to Supreme Court considerations.
In her eight years as a U.S. District Court federal trial judge in Washington, D.C., Jackson wrote more than 550 opinions. Among these was the 2019 opinion in which she ruled that former White House counsel Don McGahn did not have immunity from testifying in a congressional investigation of then President Donald Trump. This was the decision in which Jackson famously wrote “Presidents are not kings.”
In addition, since joining the appellate court last June, Jackson was part of a three-judge panel that denied Trump’s challenge to a congressional subpoena for White House records related to the Capitol insurrection.
Neither of these decisions will endear Judge Jackson to Republican senators.
Confirmation—A Race Against Time
Since Jackson was vetted only last year for her position on the U.S. Court of Appeals for the D.C. Circuit and confirmed in a bipartisan 53-44 vote, one would expect that her nomination to the Supreme Court would go forward smoothly.
But think again.
Former Congressman and Speaker of the House Paul Ryan, a conservative Republican, gave Jackson an unqualified endorsement, tweeting: “Our politics may differ, but my praise for Ketanji’s intellect, for her character, and for her integrity, is unequivocal.” And Ryan would have personal reason to know something of Jackson’s character since he is related to her by marriage. The twin brother of Jackson’s husband is married to the sister of Paul Ryan’s wife. But Ryan is no longer in the House and was never in the Senate.
True to form, the three Senate Republicans—Lindsey Graham of South Carolina, Susan Collins of Maine, and Lisa Murkowski of Alaska—who only last June joined Democrats in voting to confirm Jackson for the appellate court, are backtracking on her nomination to the Supreme Court.
Senator Murkowski is suddenly without opinion. According to the Wall Street Journal, she said she is “committed to doing my due diligence before making a final decision on this nominee.” And though Senator Collins praised Judge Jackson’s credentials, she said she would be thoroughly vetting her.
Senator Graham, who had signaled he would consider voting for his home state’s contender, Judge Michele Childs, churlishly tweeted: “The attacks by the Left on Judge Childs from South Carolina apparently worked.” But there were no “attacks by the Left.” Childs and Jackson are well within the same ballpark when it comes to their judicial philosophy.
Apparently, having no other way to cast aspersions on Jackson, Graham also tweeted: “The Harvard-Yale train to the Supreme Court continues to run unabated.” Judge Childs did not attend an Ivy-League law school; Judge Jackson did. I feel sure this fact was not the basis for President Biden’s decision. In any event, for Graham to complain about that is the height of hypocrisy considering that five of the six Republican appointees on the Supreme Court attended either Harvard or Yale. And if Jackson had not attended Harvard or Yale, Graham would probably be using that to claim she’s not qualified.
Senate Minority Leader and Chief Obstructionist Mitch McConnell, of Kentucky, issued a statement saying: “The Senate must conduct a rigorous, exhaustive review of Judge Jackson’s nomination as befits a lifetime appointment to our highest court.” One wants to yell, “Like you did for Amy Coney Barrett? “
But, fortunately, since confirmation now only requires 50 votes plus that of the vice president—so long as nominally Democratic Senators Joe Manchin and Kirsten Sinema do not insist on so-called bipartisanship in order to get their votes—Republicans should not be able to obstruct.
And so far as timing goes, what is good for the goose is good for the gander. Given that the Democrats could lose control of the Senate in the November 2022 midterm elections, there is need to act on Judge Jackson’s nomination quickly. Senate Majority Leader Chuck Schumer is said to be treating the Amy Coney Barrett timeline as a model.
Once the president sends her nomination to the Senate, the Democratic leadership plans to hold a prompt hearing in the Senate Judiciary Committee followed by a request to the Senate as a whole to immediately confirm her to the Supreme Court. They hope to have the confirmation vote by mid-April.
Will spring leave Judge Jackson merely sitting on the bench, or promoted to the highest one? Female members of the bar like me will be watching closely.
Political columnist Jessie Seigel had a long career as a government attorney in which she honed her analytic skills. She has also twice received an Artist’s Fellowship from the Washington, D.C. Commission on the Arts and Humanities for her fiction, and has been a finalist for a number of literary awards. In addition, Seigel is an associate editor at the Potomac Review, a reviewer for The Washington Independent Review of Books, and a dabbler in political cartoons at Daily Kos. Of this balance in her work between the analytic and the imaginative, Seigel jokes, “I guess my right and left brains are well-balanced.” More on and from Seigel can be found at The Adventurous Writer, https://www.jessieseigel.com.