Editor’s note: Judge Ketanji Brown Jackson’s Supreme Court confirmation hearings began Monday. Click here for updates
Six days after President Joe Biden’s inauguration, White House counsel Dana Remus put in a call to Ketanji Brown Jackson to see if the judge might be interested in a new job: replacing Merrick Garland on a powerful federal appeals court.
The new administration was poised to prioritize judicial vacancies and planned to push through slates of nominees that would send a message about how the President viewed the courts. Stellar credentials were essential, but Biden also wanted candidates who would bring a fresh professional and demographic diversity to benches across the country dominated by White males. He sought nominees who had worked as public defenders and civil rights attorneys, for instance.
Jackson – then serving on a federal trial court in Washington, DC – fit the bill perfectly. She had a glittering resume that included Harvard degrees and federal clerkships, but her lived experience was rooted in public service.
Looming in the future was the possibility that Justice Stephen Breyer would retire from the Supreme Court, and the federal appeals court in Washington has been a stepping stone for high court nominees.
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Biden had pledged to make history by naming a Black woman to the Supreme Court. Such an historic move would highlight a group of female potential nominees who have breached barriers to reach the top of the legal profession. Jackson, who is African American and a former Breyer clerk, would likely be a top contender for that seat. An appeals court post would serve to further season her and boost her profile.
Asked about race during her confirmation hearing last year, Jackson responded carefully. She said that she didn’t think race played a role in the kind of judge that she had been or would be, but she thought her professional background, especially as a trial court judge, would bring value.
“I’ve experienced life in perhaps a different way than some of my colleagues because of who I am, and that might be valuable,” she said. “I hope it would be valuable if I was confirmed to the circuit court.” Last June, the Senate confirmed Jackson by a 53-44 vote.
Now, Jackson, 51, is believed to be at the top of Biden’s list of potential candidates to replace Breyer, who intends to retire at the end of the current Supreme Court term.
“The bench of Black women attorneys with stellar credentials is extremely deep,” said Elizabeth Wydra, president of the liberal Constitutional Accountability Center. But, she noted, Jackson brings more than just a distinguished judicial record.
She has “an understanding of how the law affects people based on both her professional and lived experiences, and a powerful commitment to equal justice,” Wydra said.
Jackson has served as an assistant federal public defender, a commissioner on the U.S. Sentencing Commission, a lawyer in private practice and on two prestigious federal courts.
If elevated to the high court, she would follow in the footsteps of the likes of Chief Justice John Roberts and Justices Neil Gorsuch and Brett Kavanaugh, who took the seats of the justices they had worked for.
Jackson clerked for Breyer during the 1999 term after serving as a clerk in 1997-1998 to Judge Bruce M. Selya, a federal judge in Massachusetts.
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At an event in 2017 sponsored by the liberal American Constitution Society, she called working for Breyer an opportunity of a lifetime “to bear witness to the workings of his brilliant legal mind.” She also joked about how the justice often biked to work and would show up in his majestic chamber wearing “full bicycle regalia.”
Jackson often speaks about areas of her expertise in the law, when she addresses audiences, but she also talks about diversity and work-life balance.
In a 2017 speech at the University of Georgia School of Law, she reflected on her journey as a mother and a judge, emphasizing how hard it is for mothers to serve in big law firms – something she said she had done at times to help support her family.
She noted that the hours are long and there is little control over the schedule, which is “constantly in conflict with the needs of your children and your family.” She also highlighted the traps of launching a career in the law and pointed to recent studies that show that lawyers of color – both male and female – constitute only 8% of law firm equity partners nationwide.
Glittering resume
Jackson left law firm life behind in 2010 to become a commissioner on the US Sentencing Commission, an independent agency that establishes sentencing policies and practices for the federal courts. She has said she learned to knit during her Senate confirmation process to channel her nervous energy.
Rachel Barkow, now a professor of law at New York University, served with Jackson on the bipartisan commission and noted pointedly how well the members worked together despite ideological differences. Another commissioner at the time was William H. Pryor Jr., a conservative judge who sits on the 11th US Circuit Court of Appeals.
Barkow said Jackson was an “upbeat presence” who always does “what she is supposed to do, when she says she is going to do it.”
At the time, federal prisons were over capacity, and there was widespread bipartisan acknowledgement that federal drug sentences were too long. The seven-member body unanimously decided to lower federal drug sentences. They made the reductions retroactive, Barkow said, which meant more than 30,000 federal prisoners got lower sentences.
President Barack Obama would go on to nominate Jackson to the US District Court for the District of Columbia, which she joined in 2013. For that confirmation hearing, she was introduced by a well-known Republican, Wisconsin’s Paul Ryan, who would go on to become speaker of the House and who happened to be related to her by marriage. (Jackson’s husband’s twin brother is married to the sister of Ryan’s wife.)
“I know she is clearly qualified,” Ryan said. “But it bears repeating just how qualified she is.”
“Our politics may differ, but my praise for Ketanji’s intellect, for her character, for her integrity, is unequivocal,” he added.
At each of her judicial confirmation hearings, her husband, Patrick Jackson, a DC-based surgeon, has been pictured sitting behind her. The couple share two daughters, Talia and Leila. Her mother, a former public school science teacher and principal of a public magnet school in South Florida, and her father, a public high school teacher who was later chief counsel to the Miami-Dade County school board, also have been in attendance.
One thing she did not discuss was the life sentence her uncle, Thomas Brown, Jr., received after a drug offense.
In 2008, when she was in private practice and well before she became a judge, Jackson referred her uncle’s file to WilmerHale, a law firm that handles numerous clemency petitions, according to a spokesperson for the firm.
The firm submitted the petition on Brown’s behalf on October 7, 2014, and Obama commuted his sentence on November 22, 2016. According to the firm, Jackson had “no further involvement in the matter” after making the referral. Jackson’s chambers said she would decline comment on the issue.
Public service
At her 2021 confirmation hearing for the seat on the federal appeals court, Jackson talked about her professional trajectory, peppered with stints in public service.
Asked why she had chosen to go into public service earlier in her career, she said, “I remember thinking very clearly that I felt like I didn’t have enough of an idea of what really happened in criminal cases, I wanted to understand the system.”
“I thought it would be an opportunity to help people as well, I come from a background of public service. My parents were in public service my brother was a police officer and in the military and being in the public defenders office felt very much like the opportunity to help with my skills and talents,” Jackson added.
She said the experience had made her a better judge because she remembered that many of her clients hadn’t really understood what had happened to them in the system. As a trial judge, Jackson said, she took extra care to communicate with the defendants who came before her. “I speak to them directly,” she said, because “I want them to know what is going on.”
A.J. Kramer worked with Jackson at the Federal Public Defender’s office in DC and still keeps in touch with her. He said no current member of the Supreme Court has worked as a public defender and “seen the system from that side of the aisle”.
“It’s not that you have more or less sympathy,” Kramer said in an interview, “but that you have an idea how the system actually works.”
Confirmation hearing and discussion of race and being a judge
At her most recent Senate hearing, there were no real fireworks, but instead, an air of the inevitability of her confirmation. Republicans spent more time attacking the Biden administration or Democrats in general than targeting Jackson.
Texas GOP Sen. John Cornyn did ask Jackson about professional diversity and race.
He said her experience as a trial judge would be a “very important qualification” and praised her “impressive” background. Cornyn added that it was important for the public to have confidence in the judiciary “and I think part of that confidence is knowing that people like them can serve on the bench and that we applaud that diversity.”
But Cornyn later said that “since our Democratic colleagues seem to be placing so much emphasis on race,” he wanted to know something else. “What role does race play, Judge Jackson, in the kind of judge you have been and the kind of judge you will be?”
Without skipping a beat, Jackson said, “I don’t think that race plays a role in the kind of judge that I have been and that I would be in the way you asked that question.”
“I’m looking at the arguments, the facts and the law, I’m methodically and intentionally setting aside personal views, any other inappropriate considerations and I would think that race would be the kind of thing that would be inappropriate to inject in my evaluation of a case,” she continued.
“I would say that my different professional background than many of the court of appeals judges, including my district court background,” she said, “would bring value.”
“I’ve experienced life in perhaps a different way than some of my colleagues because of who I am and that might be valuable – I hope it would be valuable if I was confirmed to the circuit court, ” she added.
Tennessee GOP Sen. Marsha Blackburn brought up early rumors about the Supreme Court.
“I know you are fully aware that you are discussed regularly as a Supreme Court nominee”, Blackburn said before asking what the judge thought about recent proposals – driven by Democrats to try to dilute the conservative majority on the high court – to add more justices to the bench.
Jackson declined to comment.
In follow-up written questions, she was asked whether a number of Supreme Court cases, including those that concern abortion, religious liberty and the Second Amendment, were correctly decided. She said that as a federal judge all of the Supreme Court’s pronouncements would be binding and that it would be inappropriate to comment on the “merits or demerits” of particular cases. But she made exceptions, including for Brown v. Board of Education – the landmark 1954 opinion that struck down school segregation and the “separate but equal” doctrine. She said the ruling overturned the “manifest injustice” of Plessy v. Ferguson.
“The underlying premise of the Brown decision – i.e. that ‘separate but equal is inherently unequal’ – is beyond dispute and judges can express their agreement with that principle without calling into question their ability to apply the law faithfully to cases raising similar issues,” Jackson said.
She was also pressed on the fact that as an assistant federal public defender she represented a detainee held at Guantanamo Bay, Khi Ali Gul. She said that as an attorney she had a duty to represent her clients zealously but also was mindful of the “tragic and deplorable circumstances” that gave rise to the U.S. government’s apprehension of persons secured at Gitmo. She noted that she was “keenly aware” of the threat the September 11, 2001, attacks posed on “foundational constitutional principles “and that her own brother at the time was enlisted as a U.S. Army infantryman deployed in Iraq.
She also provided senators a citation for an interview she gave in 2007 to The Washington Post for a story about Justice Clarence Thomas – the only African American currently on the high court.
According to the article, she recalled sitting across from Thomas at lunch once – the date of the encounter was not revealed – with a quizzical expression on her face.
“Jackson, who is black, said Thomas ‘spoke the language,’ meaning he reminded her of the black men she knew. ‘But I just sat there the whole time thinking: ‘I don’t understand you. You sound like my parents. You sound like the people I grew up with.’ But the lessons he tended to draw from the experiences of the segregated South seemed to be different than those of everybody I know,’” the article read.
Republicans who ended up voting to confirm her to the DC Circuit were Susan Collins of Maine, Lindsey Graham of South Carolina and Lisa Murkowski of Alaska.
Opinions
Through her service on the DC district and appeals courts, Jackson has been involved in recent litigation involving former President Donald Trump and the Democratic-controlled House of Representatives.
On the appeals court, she voted against Trump when his lawyers sought to block records related to the January 6, 2021, Capitol riot from going to the House select committee investigating the attack. The Supreme Court later cleared the way for the records to be released. In August, she voted to allow Biden’s eviction moratorium – put in place during the pandemic – to remain in place. The Supreme Court later blocked it over the dissent of the court’s three liberals.
While on the district court, Jackson penned more than 500 opinions.
In one notable case, she ruled against the Trump administration’s efforts to block then-White House counsel Don McGahn from testifying as part of Congress’ impeachment probe.
“Presidents are not kings,” she said in the 2019 opinion, adding that the Trump administration’s assertion that it had “absolute testimonial immunity” protecting its senior level aides “is a proposition that cannot be squared with core constitutional values” and “cannot be sustained.”
She concluded that the “United States of America has a government of laws, not of men.”
In a separate case from 2018 brought by federal employee unions challenging executive orders issued by Trump, Jackson held that most but not all of the provisions in the orders conflicted with the collective bargaining rights of federal workers under federal law. Her judgment was vacated by the appeals court.
In Make the Road New York v. McAleenan, Jackson ruled against the Trump administration in a case brought by the ACLU and other immigrant rights groups that were challenging the Department of Homeland Security’s decision to expand the categories of non-citizens who could be subject to expedited removal procedures without being able to appear before a judge. The groups said the orders had sparked fear in immigrant communities around the county. The federal appeals court agreed that Jackson’s court had the power to rule over the case, but reversed her decision, holding that DHS had the discretion to act.
She also sentenced Edgar Maddison Welch to 48 months in prison in 2017 after he fired an assault rifle inside a Washington, DC, pizzeria. He claimed he was attempting to find and rescue child sex slaves that he believed were being held at the restaurant.
“The extent of recklessness in this case is breathtaking. It is sheer luck that no one, including (Welch), was killed,” Jackson said, adding, “I’ve never seen anything like the conduct we see here today.”
CNN’s Chandelis Duster contributed to this report.
