Many Republicans voted for Judge Ketanji Brown Jackson for the Appellate Court. But they'll do anything to keep a brilliant, more-than-qualified Black woman from being appointed to the bench.
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On February 25, President Joe Biden kept his campaign promise to nominate a Black woman to the United States Supreme Court, a promise he’d made on the campaign trail two years earlier. The historic nomination of Judge Ketanji Brown Jackson of the D.C. Circuit Court of Appeals to the Supreme Court is long overdue for two reasons: First, the highest Court has, shamefully, never had a Black woman serve on it, and it’s far past the time for that wrong to be righted. Additionally, though, the Court hasn’t had someone with indigent defense or representation sit on the Court since Justice Thurgood Marshall, who retired in 1991.
But of course, rather than this being treated as a net good by everyone, conservatives have gone full-tilt rage-baby at the idea a Black woman is qualified enough to be on the Court.
Even before it was known that Judge Ketanji Brown Jackson would be nominated for retiring Justice Stephen Breyer’s seat, the Right had begun smearing not just Jackson, but any hypothetical Black woman, as an affirmative-action pick. Media Matters collected many of these, including the Cato Institute’s Ilya Shapiro tweeting that the selection process would result in a “lesser Black woman” and conservative radio host Dan Bongino saying that if you have a Black woman on the Court, she “could come out and say anything she wants—anything you say against it, you will automatically be deemed a racist.”
Jonathan Turley, one of those law professors who pretends to be a Democrat but somehow always ends up defending Republicans, including Trump at his impeachment, took to The Wall Street Journal to say that, basically, you can’t have a Black woman on the Court when the Court is considering affirmative-action cases this year because she “will have gained her seat in part through the exclusionary criteria of race and sex.”
Now, there’s an actual nominee, and things are only getting worse, particularly because of Judge Jackson’s background as a public defender, which is equally as sinful to the GOP as being Black.
The most disingenuous attack has to be from Sen. Lindsey Graham, whose spine is perpetually flexible. Graham voted to confirm Jackson to the D.C. Circuit just last year, but once Biden nominated her for the Supreme Court, the Republican senator said it meant “the radical Left has won President Biden over yet again.” You won’t be surprised to learn that Graham has not decided to explain how Jackson became a radical leftist in the last eight months since she went on the appellate bench.
Graham is also suddenly very, very concerned about the fact that only people from elite law schools are being appointed to the highest Court, grumbling that “the Harvard-Yale train to the Supreme Court continues to run unabated.” Graham had no such concerns about Neil Gorsuch (Harvard Law), who he called “a home run pick by President Trump.” And Brett Kavanaugh, who went to both undergrad and law school at Yale? You may recall Graham blew his stack over the fact that Kavanaugh was even being questioned about his persistent habit of youthful sexual assault and, after some weird yelling in the Senate chamber, declared passionately to Kavanaugh, “I hope you’re on the Supreme Court. That’s exactly where you should be.”
But now, apparently, the fact Jackson went to Harvard is a mark against her as far as Graham is concerned, and it’s time for the Court to “have a little more balance, some common sense on it.”
It would be hilarious if it didn’t mean that the nation was going to have to live through people like Graham smearing Jackson for the entirety of her confirmation hearings.
Graham isn’t alone. The RNC is clutching its pearls over Jackson’s unforgivable crime of donating to Obama’s presidential campaign and working as a poll monitor. They’re also mad that Jackson’s husband donated to Hillary Clinton in 2016,
Again, this is just cynical as all hell, and the GOP is hoping no one calls them out on the hypocrisy of these statements. Three of the justices currently on the Court—John Roberts, Kavanaugh, and Amy Coney Barrett—all worked on Bush v. Gore, ensuring George W. Bush got to be president no matter the actual vote count. So, to recap: Donating to Democrats is unforgivable radicalism. Literally working to stop counting votes and functionally ensure a conservative-dominated Supreme Court picks a Republican to win the presidency? Just normal job stuff, nothing to be alarmed about.
This cavalier attitude toward being partisan doesn’t stop when Republican nominees become Supreme Court justices. Justice Thomas’s wife, Ginni Thomas, was a staunch supporter of the January 6 insurrection activities, although she then deleted her tweets about it. Not to mention the fact she’s spent years agitating for conservative causes that come before the Court, such as abortion and voter suppression. And both Justices Gorsuch and Sam Alito have given speeches to the Federalist Society, the hyperconservative judicial organization that fed Trump judges with which to stack the federal courts. But all that is fine and totally value-neutral, apparently.
Conservatives are also furious that Judge Jackson has a background in defending the indigent, having spent two-and-a-half years of her career as a federal public defender. That career, of course, meant that Jackson defended people accused of a crime who could not afford an attorney. She was also appointed to represent prisoners at Guantanamo Bay, a fact that made Sen. Tom Cotton unhappy when he quizzed her during her Appellate Court confirmation hearing last year.
Since Jackson was nominated to the Supreme Court, the RNC’s Rapid Response team has been breathlessly calling out these things, complaining that not only did she defend Guantanamo inmates—she defended them “zealously” instead of “just giving them a competent defense.”
Don’t tell the RNC, as it would spoil their dumb fun, but both the model rules for all lawyers in the United States “with zeal in advocacy on the client’s behalf” and the ethical rules for attorneys in Washington, D.C., say a lawyer “shall represent a client zealously.” Jackson actually has no choice but to provide zealous representation, as does every attorney. There’s no special dispensation under which some attorneys are allowed to just sleepwalk their way through a case, providing only vaguely “competent” defenses if they find their clients unsavory.
The RNC also would like everyone to overlook the part where the Sixth Amendment of the U.S. Constitution quite literally guarantees representation to everyone accused of a crime—including poor people, including alleged terrorists, and including people Republicans don’t like. This refusal to acknowledge one of the pillars of the American judicial system has popped up during multiple confirmation hearings for Biden’s nominees thus far, with Senate GOP members beclowning themselves.
Take Sen. Ted Cruz, who asked a lawyer for the Innocence Project, the function of which is literally to help innocent people get out of jail by exonerating them with DNA evidence, if she cared about “the innocent people being killed because of the policies you’re implementing.” Yes, getting innocent people out of prison is exactly what leads to innocent people being killed. What???
You can expect a lot more of these weird sideways attacks because the fact of the matter is, if Jackson were not a Black woman nominated by a Democratic president, people would be falling over themselves to praise her credentials. After graduating from an Ivy League school, she clerked for a judge in the federal District Court, then a federal Appellate Court, and then for Justice Stephen Breyer. And if you think that getting the nod to replace a Justice for whom you clerked is somehow shady, you should really check in with retired Justice Anthony Kennedy and current Justice Kavanaugh. Jackson also spent four years as the head of the United States Sentencing Commission and several years in private practice. At 8.9 years on the federal bench prior to her nomination, Jackson has more judicial experience than four current justices—Chief Justice Roberts, Clarence Thomas, Elena Kagan, and Coney Barrett—combined. There’s no metric under which she’s unqualified, no matter how hard the GOP pushes this narrative.
You can also expect some completely fake disappointment from senators who are busy pretending they’d like a Black female judge—just not this Black female judge. That’s the line Sen. Tim Scott has trotted out, saying Biden should have picked Michelle Childs as she would have received bipartisan support. Sen. Graham tried this angle as well.
The absurd fiction that a meaningful number of the Senate GOP members would vote for any Biden Supreme Court pick is just that—a fiction. This group happily helped Sen. Mitch McConnell to steal a Supreme Court from President Obama. They helped rush through Gorsuch into that stolen seat. They gleefully voted for Kavanaugh, despite credible allegations of sexual assault. They helped Trump ram Coney Barrett through the nomination process, seating her eight days before the 2020 election, after millions had already voted. This demand that Democrats now engage in moderation and bipartisanship is in bad faith and It would be great if Senate Democrats—looking at you, Kyrsten Sinema and Joe Manchin—kept that in mind. The Senate GOP is Lucy with the football, and Democrats are too often Charlie Brown, so hopeful that this time—maybe just this once—the GOP won’t pull the football away.
Ketanji Brown Jackson isn’t just a historic choice for the Court. She’s an objectively excellent addition to the Court. That’s not just because her credentials are a good fit for the highest Court in the land, though they undoubtedly are. Having someone with a background in indigent defense, someone who understands the importance of our Constitutional guarantees of fairness in criminal trials, can bring us one step closer to a Court that cares for the most vulnerable among us.