By Alexis Karteron
President Joe Biden made good on his promise to nominate the first Black female justice to the Supreme Court when he announced that Judge Ketanji Brown Jackson was his choice on Feb. 25, 2022. Jackson is currently a judge on the U.S. Court of Appeals for the D.C. Circuit, where she was one of President Biden’s first judicial nominees. We asked Alexis Karteron, director of the Constitutional Rights Clinic at Rutgers University Law School and a former senior attorney at the New York Civil Liberties Union, to give us her impressions of the nomination.
What were your first thoughts when you saw that President Biden had chosen Judge Ketanji Brown Jackson for nomination to the Supreme Court?
There are not that many Black women lawyers in the United States. We’re only about 2% of our profession. Having been in that position of being in a very small club of Black women who attend law school and become lawyers, I’m pretty excited to see one of us ascend to the very top of the profession and be nominated to join the Supreme Court.
Beyond that, I’m excited to see her nominated because I think she has a wealth of experience and a unique background professionally that I believe could only benefit the court’s decision-making. She’s the first person to be nominated to the court who has been a criminal defense attorney since Justice Thurgood Marshall was on the court, and he’s been off the court over 30 years now.
She is supremely qualified. She has not just an elite education – she went to Harvard for both college and law school – she clerked for the retiring justice whose place she will take, Stephen Breyer. Beyond that, she has been in private practice, she’s been on the U.S. Sentencing Commission and she’s been both a trial court and appellate judge. So she’s seen the profession from a variety of perspectives that will inform her decisions.
AP Photo/Henry Griffin
What would it mean to have a former public defender on the court?
I imagine it will help her understand the very real human toll of our criminal justice system. The U.S. is far and away the world’s largest jailer, with around 2 million people incarcerated in jails and prisons and 4 million more under criminal justice supervision like probation or parole. The criminal justice system takes an enormous toll on both people in the system and their loved ones. I believe having a Supreme Court justice who is familiar with that is incredibly valuable.
In addition, having represented people facing accusations from the government, she knows that the government does not always get things right. That may mean that she has a healthy skepticism of the government’s version of things, which is important for ensuring fairness in our judicial system.
She would join a court where she would be in the minority, philosophically, as is Justice Breyer. What does that mean for the court?
Her presence on the court will not necessarily swing the outcome of high-profile cases. But she’s also not Justice Breyer’s clone. I think having her voice on the court will certainly still be valuable, and again, she brings different life experiences to the bench that will inform her decision-making.
What notable rulings has Judge Jackson made?
There was one case during the Trump administration involving whether the White House counsel could be required to testify in the House of Representatives. One of the notable things that she said in that opinion was that “presidents are not kings.” She ruled that in our constitutional government, people have to abide by the rules, and the White House counsel could not be excused from complying with the House subpoena simply because the president didn’t want him to.
I’m teaching constitutional law right now, and this is a classic clash between Congress and the executive branch – a fight for control and how much Congress should be able to inquire into the president’s activities.
This is not a radical opinion that marks a major departure from precedent or other recent decisions.
AP Photo/Mariam Zuhaib
She’s the first Black woman nominated to the Supreme Court. What might that mean for her jurisprudence?
I don’t think her being a Black woman necessarily tells us anything about how she’ll rule on a particular case. But we all know that judges bring their lived experiences to the bench. She has experienced the world in a way that is different from everyone else on the Supreme Court – even though she has plenty in common with other members on the court.
Research from the business world suggests that diverse groups make better decisions, in part because people challenge each other. They don’t necessarily have the same blind spots or see things the same way. I’m wondering how that will carry over to the Supreme Court.
Jackson would be one of the two youngest people on the court. Is that important?
I’ve heard justices say before that any time a new member joins the court, it’s a new court, that the dynamic shifts. From a generational perspective, there may be things that are important to her that are different than they were for Justice Breyer. I think having some youthful energy on the court can be useful – if it counts as youthful energy to have a 51-year-old added to the Supreme Court.
Maybe she has a more detailed or nuanced understanding of, say, social media, and how it operates. Maybe she has younger people in her life, who can inform her about those things and provide a different perspective than the members of the court who are a little bit older.
What are you going to say to your students about this appointment?
A new justice means there’s a new court, even if the ideological balance doesn’t necessarily shift. This is a really interesting time to watch the Supreme Court, because the majority on the court right now is willing to question things that seemed like they were settled for a long time. For example, although Roe v. Wade seemed to be settled law, we’re going to find out soon whether a majority of the court agrees.
Similarly, earlier this year, when the court barred implementation of OSHA’s COVID vaccine mandate for large businesses, it resurrected a doctrine that had been moribund for decades.
So I’m excited to see how her addition to the court will change things, both with the high profile blockbuster cases, and the ones that tend to fly under the radar.
Alexis Karteron is Associate Professor of Law at Rutgers University, Newark.
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Dennis says
Picked for her skin color. Qualified or not, it’s racist by a racist president.
Pierre Tristam says
Of course the 116 times white presidents picked white justices confirmed by bleach-white senates had absolutely nothing to do with racism.
jake says
The goal should always be to pick the best candidate, and maybe she is. However, to eliminate others, based on sex, race, or color, is to diminish the one chosen.
Frederick says
Oh nice move. The “I know you are but what am I” defense. That is always effective. Regardless of who does the choosing, the most qualified candidate should be chosen.
Ray says
Another FlaglerLive commenter wandering through life fooling himself. The only issue is whether she is qualified. No matter which president ever chose to nominate a Black female jurist for the first time, Dennis could post the same comment and still prove himself meaningless. Dennis, who commonly comments only so he can hear his head roar, presents as a person has lacks the qualities necessary to determine for himself whether she is qualified.
Frederick says
Ray, Is she the most qualified? Would you want to chose a doctor doing brain surgery on you who is just “qualified” or do you want the best?
Ray W. says
Fredrick, this is an easy reply to type. We live in a liberal democratic Constitutional republic. Language in our then-proposed Constitution granted certain limited powers to our federal government. Those select few of our founding fathers who were chosen by their fellow citizens to participate in the various state ratification conventions convened to debate whether to adopt that language. When a sufficient number of state ratifying commissions adopted our Constitution, those certain limited powers detailed in the language of the Constitution were given to the fledgling federal government. One of the limited powers given to the executive branch of the federal government is the power to determine who is best suited to be a nominee to the Supreme Court. President Biden exercised that delegated power; he determined who is best for the position. It is up to the Senate to either confirm or deny that power.
In a partisan world of a type that exists today, a type of partisanship that was so feared by our founding fathers, the argument about who is best is guaranteed to soon devolve into a partisan show for political gain. You cannot win that argument. I cannot win that argument. Perhaps this is why our founding fathers took the power to nominate federal judges away from the people and gave it to the executive branch of government. Nonetheless, the power was given to the federal government. The people retain the individual right to express our thoughts about it, but the president decides who is best qualified for the position.
As FlaglerLive readers can easily discern, the very first comment submitted on this subject by Dennis proves my point about the process devolving into partisan rancor. Neither you, Fredrick, nor I possess the background information necessary to determine who is best for the position. I certainly would never trust you with the power to determine who is best for the position and I would fully agree with you if you typed the same about me. While the Seventh Judicial Circuit has been blessed with an extraordinary number of outstanding judges past and present, I have witnessed enough displays of vicious rulings over the decades to know that we need a vetting procedure that is as free from partisanship as is humanly possible in all of our judicial appointment processes.
Perhaps a synopsis of the relatively recent history of Florida’s nominating process is appropriate here.
By the late 60’s, sufficient understanding existed among Florida’s citizens to support a complete remake of Florida’s constitution. In 1968, citizens approved the first of two extensive constitutional revisions. The second occurred in 1972. This was a time of a number of judicial scandals. Florida’s newly revamped judicial appointment process gave the governor power to appoint three members to each of the 20 circuit nominating commissions, the four district nominating commissions (Florida’s 5th DCA had not yet been created), and the Florida Supreme Court’s nominating commission. The Florida Bar appointed three more members to each commission. The six appointed members then selected the remaining three members. The process was designed to limit the impact of political partisanship on the appointment process.
At around the same time, the American Bar Association was relied upon to engage in a background vetting process for potential federal judicial appointees. For a number of decades both Democratic and Republican presidents submitted names of potential judicial nominees to the American Bar Association. If the vetting process resulted in a negative rating, the potential nominee’s name was not sent to the Senate for confirmation.
In the late 90’s, Florida’s legislature began to revamp the nominating process. In the initial legislation, the newly elected Governor Bush was given the power to appoint five of nine members of each nominating commission; the Florida Bar appointed the remaining four members. After further revisions, our current governor possesses the power to appoint five of each commission’s members and the Florida Bar submits a list of names to the governor, who then appoints the remaining four members from that list. In essence, with some limitations, our governor appoints all nine members to each of 26 nominating commissions.
One of the early positions taken by President George W. Bush when he took office in 2001 was an announcement that the American Bar Association would no longer vet potential federal judicial nominees prior to the president sending their names to the Senate.
An argument can be made and supported that the effort to remove partisanship from Florida’s judicial nominating process, implemented by our citizens from not so long ago, has been weakened. Can it also be argued and supported that a parallel federal effort to limit partisanship has been compromised?
As an aside, it can be argued and supported that history over the last 60 years or so shows that Thurgood Marshall was perhaps the best nominee and certainly one of the most qualified lawyers to be appointed to the Supreme Court. He won a significant number of cases before the United States Supreme Court before he became Solicitor General. As our Solicitor General, he won another significant number of cases before the Supreme Court. I have heard the point that Thurgood Marshall argued well over 100 cases to the Supreme Court, but I have not counted the actual number. Because his appointment to the Solicitor General’s office was opposed and delayed by a number of Dixiecrats (the then-influential predecessors to today’s southern branch of the Republican party), Marshall initially served in the post as a “recess” appointee. Later, as a nominee to the Court, he was confirmed by the Senate on a 69-11 vote, with 20 abstentions or “present” votes. There is certainly reason to believe that Ketanji Brown Jackson will prove to be as good or better a Supreme Court Justice than did Thurgood Marshall.
Bill C says
She’s a hundred times smarter and more accomplished than you, regardless of skin color.
jake says
One thing is certain, this nominee will be treated with much more respect than the Democrats treated Kavanaugh and Barrett.
barrick marlin says
I’m certain they’ll be using terms like “Smart and Genius” to describe her.
Bill C says
Better than Kavanaugh’s “I like beer”.
Jim says
Barrett? The “highly qualified” justice that can’t name the 5 freedoms of the 1st amendment and has never tried a case?
Now conservatives are talking about picking “the most qualified” smh
coyote says
Gee golly whiz …
And of course, the fact that she has earned and deserves much more respect than either Kavanaugh or Barret has absolutely NOTHING to do with it, huh?
Alonzo says
Dennis, if the pick was a white person would it be racist, or the status qou? I guess African Americans especially women are not qualified for nothing but to be discriminated against, killed by white cops. Dennis please wake up and realize the white men are loosing the power hold they had for too many centuries. Trump isn’t racist. He picked a white woman I guess that is o.k. The world is changing white men can’t control and rule the way they did in the past. By the way, the Repubs are blaming Biden and said he ordered the Russians to invade Ukraine. Man please wake up.
Aminorityvoice says
YES, minority voices are desperately needed in the court system! Obviously you have never been to law school. I attended law school starting in 1984 and was among just a handful of women to attend. We were considered “tokens” by the totally white “good old boy white elite males” who (including white male professors) constantly dogged on us in class. We had to go above and beyond to be prepared for class and I spent tons of hours in the law libraries to memorize, research, and prepare for the inevitable grilling in class. We ended up forming a study group, along with a few males who were interested in our perspective and our point of view. This helped us all immensely. So, don’t dare to spout out about things you have obviously have NEVER experienced. Are you worried about this candidate being a woman or being an African American? Your ignorance is showing. This president should be applauded for making a concerted effort to be inclusive of minorities in his administration and not just the white good old boys. It is a situation that has long been needed all the way from corporations to the government. Until we have 50% representation, at all levels of society of all minority groups, we are wholly being discriminated against. Do you have any knowledge about the “suffragettes” who were instrumental in pushing for women being able to vote? Women were considered ignorant chattel by males who were incapable of understanding governmental issues and were arrested, beat, raped and even locked up in institutions by their husbands. Well they proved them all wrong. But it is only until recent years that women were even “allowed” to run for office or hold corporate positions BUT also are paid no where near the same salaries that their white male colleagues earn. We still have a lot of work to do in this regard.
Sherry says
@ jake. . .
You mean the despicable kavanaugh who the morally deficient Republicans FORCED onto the Supreme court even though there were at least 3 credible accusations of sexual assault against him? Here are the very short versions of their stories:
1. We must NEVER forget Christine Blasey-Ford= The incident allegedly happened at a gathering of teenagers at a house, when Mr Kavanaugh and a friend allegedly “corralled” her into a bedroom. Mr Kavanaugh and his friend were both drunk, she says.
“While his friend watched, she said, Kavanaugh pinned her to a bed on her back and groped her over her clothes, grinding his body against hers and clumsily attempting to pull off her one-piece bathing suit and the clothing she wore over it.
“When she tried to scream, she said, he put his hand over her mouth.”
Mrs Ford, 51, is further quoted as saying that she managed to break free.
“I thought he [Mr Kavanaugh] might inadvertently kill me,” she told the Post.
Russell Ford, Her husband since 2002, he said in an affidavit that he learned around the time of their wedding that she had been the victim of sexual assault. In 2012, during couples’ therapy, she revealed that she had been “trapped in a room and physically restrained by one boy who was molesting her while another boy watched. … I remember her saying that the attacker’s name was Brett Kavanaugh.” (Ford provided The Post with therapist notes from the couples’ therapy in which she reported that she was attacked by students “from an elitist boys’ school” who went on to become “highly respected and high-ranking members of society in Washington.”)
Adela Gildo-Mazzon, a friend. In an affidavit, she said that during a meal in June 2013, Ford, “visibly upset,” told her that she had been “almost raped by someone who was now a federal judge. She told me she had been trapped in a room with two drunken guys, and that she then escaped.”
Keith Koegler, a close friend. In an affidavit, he said he learned in 2016 that she had been the victim of sexual assault. On June 29, he said, she wrote him an email in which she said the person who assaulted her was Trump’s favorite for a Supreme Court nomination.
Rebecca White, a friend. In an affidavit, she said that in 2017, Ford told her that when she had been a young teen, she had been assaulted by an older teen, “now a federal judge.”
2. Deborah Ramirez
Her allegation: She told the New Yorker that 35 years ago at Yale University, “Kavanaugh had exposed himself at a drunken dormitory party, thrust his penis in her face, and caused her to touch it without her consent as she pushed him away.” She said she had drunk a fair amount of alcohol but remembered a male student shouting, “Brett Kavanaugh just put his penis in Debbie’s face.” She said she had remained silent about the incident for many years because she blamed herself for drinking too much.
3. Julie Swetnick
Her allegation: In a sworn declaration, she said that in 1981-1983, she observed Kavanaugh drinking excessively at house parties and engaging “in abusive and physically aggressive behavior toward girls.” She claimed Kavanaugh and others would get girls inebriated so they could be “gang raped” in side rooms at house parties by a “train” of numerous boys. “I have a firm recollection of seeing boys lined up outside rooms at many of these parties waiting for their ‘turn’ with a girl inside the room. These boys included Mark Judge and Brett Kavanaugh.” She added that in 1982, she was a victim of a “gang rape” at which Kavanaugh was present. But she did not say he participated in it and provided no details about where the alleged rape took place.
Sherry says
@ frederick. . . would you consider kavanaugh a drunkard womanizer (at the very least), “the MOST qualified”?
See my prior post on kavanaugh’s multiple sexual assault accusations.
As to Barrett. . . NO WAY she was the “most qualified”. . . Did you protest then?
The NY City Bar wrote this opinion on 10/23/2020:
“we have significant concerns over the remaining evaluative criteria,” the City Bar states in its report on Judge Barrett. Those criteria are (4) maturity of judgment; (5) unquestionable integrity and independence; (6) a temperament reflecting a willingness to search for a fair resolution of each case before the court; (7) a sympathetic understanding of the Court’s role under the Constitution in the protection of the personal rights of individuals; and (8) an appreciation for the historic role of the Supreme Court as the final arbiter of the meaning of the United States Constitution, including a sensitivity to the respective powers and reciprocal responsibilities of the Congress and Executive.
“Judge Barrett’s refusal during her Senate confirmation hearing to answer whether she believed climate change was happening, responding instead that she would not address the topic because it was ‘politically controversial’ and a ‘very contentious matter of public debate,’ raises concerns as to whether she meets criteria 4 through 6,” states the report. “Judge Barrett’s rejection of settled science calls into question not only whether she has ‘maturity of judgment,’ but also whether she has ‘unquestionable integrity and independence’ and lacks the ‘temperament … to search for a fair resolution of each case….’ Judge Barrett’s rejection of accepted science on the grounds that it was controversial also raises concerns that she is not independent from the Executive Branch that nominated her and held and aggressively advocated the same views.”
Further, the City Bar writes that while Judge Barrett has shown respect for precedent in her time on the Seventh Circuit, “the entirety of her record leaves room to doubt whether she meets criterion 7”: a sympathetic understanding of the Supreme Court’s unique role in the protection of the personal rights of individuals. “A decade of Judge Barrett’s scholarly writings suggests an eagerness to overrule long-settled and revered Supreme Court precedents guaranteeing individual rights in Loving v. Virginia, Griswold v. Connecticut, Roe v. Wade, Planned Parenthood v. Casey, and Obergefell v Hodges, the report states. “Then-Professor Barrett’s refusal to include, at a minimum, Loving, Griswold, and Roe in her list of super precedents—i.e., Supreme Court decisions that ‘no serious person would propose to undo even if they are wrong’—was a warning that those individual-rights protections were at risk. Her deflection that super precedents were not at risk because the issues presented in them were procedurally unlikely to make it back to the Court was hardly reassuring.”
The City Bar finds Judge Barrett’s self-described originalist judicial philosophy, as demonstrated in her scholarly writings, Seventh Circuit opinions and Senate testimony, raises questions as to whether she meets criterion 6: a temperament reflecting a willingness to search for a fair resolution of each case. Judge Barrett’s “willingness to question the correctness of even the Supreme Court’s oldest and most venerated decisions protecting individual rights calls into question whether she would decide constitutional questions solely by employing her originalist philosophy to the exclusion of an individualized search for a fair resolution of each case” the City Bar writes.
What is it frederick? Seems like you only require “the most qualified” when FOX says so.
NotWoke says
Well, let’s see. We already have a black justice, so that satisfies the black quota. We already have a Hispanic justice, a woman to boot! Under the quota system you propose, we must need an Asian woman, not another black, because that would be 2/9=22%. Maybe a half black, half Asian woman, or better yet, one that identifies as a woman.
Marie says
Sherry, thank you for a well-researched, intelligent post. Too many like to comment/parrot what they’ve been told without actually doing any of the background research to determine if it is accurate. We have a really serious problem in this country right now because of the political divisiveness that too many are willing to push. Stop fearing each other and start making an effort to learn about your neighbor and find common ground upon which you can agree. Then respect each other’s differences and grab a beer together (or a sweet tea if you prefer). We are quite opposite of our neighbor across the street, politically. But they are a lovely family, and we do things for each other and have a very healthy neighborly relationship. Y’all should try it some time.
Sherry says
Thank you aminorityvoice. . . an excellent post! Certainly since 18.5% of the US population is Hispanic, 13.4% black, and 5.6% Asian . . . about 38% of our citizens seem under-represented in various positions of power.
Sherry says
Thank you Marie.
We should ALL remember that we are first and foremost “ALL” connected as members of the “Human Race”, sharing the planet earth. We must all do everything we can to wipe out the fear and hate being ginned up daily by politicians and the talking heads on “politically extreme” media outlets. We must continue to educate ourselves, in order to find and defend “facts” so that “TRUTH” can prevail, and ethics can again flourish. We can find our way using our moral compass by letting ideals such as honesty, kindness, compassion, justice and equality be our guiding light.
Seek joy, peace and love from within!