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Ketanji Brown Jackson: How partisan can Biden’s first US Supreme Court appointment become?

In her most notable ruling as a trial judge, Ketanji Brown Jackson said former Trump White House counsel Don McGahn was required to testify before the House Judiciary Committee.

By Kenneth Tiven

In early April, the world will learn if US President Joe Biden’s Democratic  Party—with one vote to break a tie in the US Senate— can confirm Federal Appeals Court Judge Ketanji Brown Jackson’s appointment to the high court.

If confirmed, she would become only the third African-American on the high court bench, and would be the first African-American woman judge on the nine-person court joining three other women justices.

The Senate, split 50/50, is highly partisan especially with a lifetime court appointment to consider. This was the case with the bruising battle over former President Trump’s appointment  of Brett Kavanaugh in October 2018.

The assumption is that Jackson might get the same three Republican votes her appeals court appointment brought last year from Susan Collins of Maine, Lisa Murkowski of Alaska and South Carolina’s Lindsay.

The nominee attended Harvard College and the Harvard Law School and clerked for Supreme Court Justice Stephen Breyer, the judge she will replace when he retires at the end of this term.

Opposition research has a difficult job finding things to complain about because as a judge, Jackson has no record of rulings, writings or speeches on the hot-button issues of abortion, gun rights or freedom of religion. Some of her rulings as a judge have drawn praise from liberal groups. She also worked on the US Sentencing Commission, the agency that develops federal sentencing policy, during the Obama administration, and voted to allow thousands of federal inmates serving time for crack-related crimes to get their long sentences reduced.

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But in today’s often reality free atmosphere for political debate, there is little doubt that in a confirmation hearing a Republican Senator will ask outrageous questions about her allegiance to the United States Constitution.

Senate Minority Leader Mitch McConnell, R-Ky., said in a statement that he looks forward to meeting with Jackson and conducting a “rigorous review” of her background. But he also hinted the difficult track her nomination process will likely face among Republicans. McConnell also noted that he voted against her confirmation last year to the U.S. Circuit Court of Appeals for the District of Columbia. In approving new federal court judges for the past four years of Republican rule, McConnell’s primary concern was their ideological purity as conservatives and less about what type of judges they would make.

Judge Jackson was always a front-runner, people familiar with the process said, in part because she was well-known and well-liked in Washington legal circles.

When Judge Jackson was sworn in for a federal judgeship in 2013, Supreme Court Justice Breyer did the honors. “She sees things from different points of view, and she sees somebody else’s point of view and understands it,” he said at the time.

In her most notable ruling as a trial judge, Jackson said former Trump White House counsel Don McGahn was required to testify before the House Judiciary Committee. A quote from her decision is this,

”The primary takeaway from the past 250 years of recorded American history is that presidents are not kings.”

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She was on the three-judge appeals court panel that rejected former President Donald Trump’s effort to block the National Archives from giving the House Jan. 6 committee hundreds of documents from his time in the White House. 

On the presidential short list with her were Leondra R. Kruger of the California Supreme Court, a former law clerk on the Supreme Court whose Yale Law pedigree is shared by four of the current justices; and J. Michelle Childs, a US District Court judge in South Carolina a state whose Black voters Biden has credited with helping him win the presidency. White House officials have pushed back on the idea that Judge Jackson was always the favourite.

For historical  reference, the first woman joined the court 41 years ago when Ronald Reagan as president named Sandra Day O’Conner. These are lifetime appointments so only 115 people have been justices of the court in the entire history of the US and it will surprise no one that it wasn’t until 1967 that Thurgood Marshall broke the colour barrier to become a Justice.

If Judge Jackson is confirmed, the math will be 7 of 115 or 0.06086957 (6.08%) of the entire court history have been other than white male justices.

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