A public defender has never served on Supreme Court. Jackson would be first.
Ketanji Brown Jackson, a federal appeals court judge in Washington, made history Friday by becoming the first Black woman nominated to the U.S. Supreme Court.
If confirmed, she would replace Justice Stephen Breyer, whom she clerked for over 20 years ago. Justice Breyer has said he will retire when the court’s current term ends this summer.
Why We Wrote This
Most Americans know the words by heart: “You have the right to an attorney. If you cannot afford one, one will be provided.” The work of a public defender is enshrined in the U.S. Constitution. Ketanji Brown Jackson could be the first Supreme Court justice to have served in that role.
Besides expanding the racial and gender diversity of the Supreme Court – she would become the fourth female member of the nine-person court, and its third person of color – she would also bring rare experiential diversity. She would be the first justice ever to have served as a public defender. The last justice with experience representing criminal defendants was Thurgood Marshall, the trailblazing former NAACP lawyer, who retired in 1991.
During her confirmation hearing for the D.C. Circuit last year, Judge Jackson said her service as federal public defender provided her with important insights when she became a trial judge. “There is a direct line from my defender service to what I do on the bench, and I think it’s beneficial.”
“Most of my clients didn’t really understand what had happened to them,” she continued. ”They had just been through the most consequential proceeding in their lives, and no one really explained to them what to expect.”
Ketanji Brown Jackson, a federal appeals court judge in Washington, D.C., made history today by becoming the first Black woman nominated to the U.S. Supreme Court.
If confirmed she would replace Justice Stephen Breyer, whom she clerked for over 20 years ago. Justice Breyer has said he will retire when the court’s current term ends this summer.
Besides expanding the racial and gender diversity of the Supreme Court – she would become the fourth female member of the nine-person court, and its third person of color – she would also bring rare experiential diversity. She would be the first justice ever to have served as a public defender. The last justice with experience representing criminal defendants was Thurgood Marshall, the trailblazing former NAACP lawyer, who retired in 1991. Judge Jackson would also follow in Justice Breyer’s footsteps as a justice who previously served on the U.S. Sentencing Commission.
Why We Wrote This
Most Americans know the words by heart: “You have the right to an attorney. If you cannot afford one, one will be provided.” The work of a public defender is enshrined in the U.S. Constitution. Ketanji Brown Jackson could be the first Supreme Court justice to have served in that role.
“As a professional who has stood in the well of the courtroom, sat with individuals accused of crimes in jails and prisons, and understood the pain of the criminal legal system in communities across the United States, she can bring the voice of reality to a process that quite often suffers from abstraction and generalities, divorced from the realities of the street,” says Martín Sabelli, president of the National Association of Criminal Defense Lawyers.
The U.S. Senate confirmed her nomination to the D.C. Circuit Court of Appeals in a narrow but bipartisan vote less than a year ago, and leading Republican senators today promised a respectful confirmation process. But they also suggested her nomination represents a victory for radical progressives.
It’s unlikely that she would change the ideological balance of the high court, where six justices have been appointed by Republican presidents. Of the last 19 Supreme Court appointees, she would be the fifth by a Democrat.
President Joe Biden announced Judge Jackson’s nomination at the White House this afternoon, fulfilling a campaign pledge to nominate a Black woman to the Supreme Court.
“For too long our government, our courts haven’t looked like America,” President Biden said. “And I believe it’s time that we have a court that reflects the full talent and greatness of our nation with a nominee of extraordinary qualifications, and that will inspire all young people to believe that they can one day serve their country at the highest level.”
“A real-world perspective”
Prior to serving on the D.C. Circuit, widely considered to be the second most powerful court in the country, Judge Jackson spent seven years as a U.S. district judge in Washington, D.C. Besides Justice Sonia Sotomayor, she would be the only Supreme Court justice with experience as a trial judge.
“You have to have voices from every part of the system in order for the system to be implemented and improved and balanced,” says Mr. Sabelli. “The law as it’s studied can be abstract, but the law as it’s practiced is real and has flesh-and-blood consequences every day.”
Born in Washington, Judge Jackson grew up in South Florida, raised by parents who were public school teachers and graduates of historically Black colleges and universities.
One of her earliest memories, she has said, is sitting with her father while he studied for his night classes at the University of Miami School of Law. When she graduated from high school, she was the first member of her family to attend Harvard University, where she later also got her law degree.
Besides “sterling credentials,” she has “a real-world perspective that comes from someone who wasn’t necessarily born into privilege,” says Melissa Murray, a professor at the New York University School of Law.
“She’s got the kind of résumé and experience that we equate with the American dream,” she adds.
Like many justices, Judge Jackson has a résumé that includes an Ivy League education, prestigious clerkships, and stints at big law firms. But it’s the less traditional paths her career took that reportedly caught the attention of President Biden: in particular, the two years she spent as a federal public defender.
During her confirmation hearing for the D.C. Circuit last year, Judge Jackson said that there is “a direct line from my defender service to what I do on the bench, and I think it’s beneficial.”
Representing clients who had already been convicted, she said she was “struck” by how little they knew about the legal process.
“Most of my clients didn’t really understand what had happened to them. They had just been through the most consequential proceeding in their lives, and no one really explained to them what to expect,” she told the Senate Judiciary Committee.
So “when I have to sentence someone – and I’ve sentenced more than 100 people – I always tell them ... this is why your behavior was so harmful to society,” she added. “This is why I, as the judge, believe that you have to serve these consequences for your behavior.”
Family history
Later in her career, Judge Jackson gained more nontraditional experience when she spent four years as vice chair of the U.S. Sentencing Commission, an independent, bipartisan agency that articulates sentencing guidelines for the federal courts.
Most notably, she was part of a unanimous vote to make retroactive new guidelines reducing the differences between federal sentences for crack and powder cocaine offenses. Noting that the harsher sentences were handed down mostly to Black and Latino men, she said, “No other federal sentencing provision is more closely identified with unwarranted disparity and perceived systemic unfairness.”
She was also connected to the issue in a personal way. Her father’s brother, an uncle she never really knew, was sentenced to life in prison for nonviolent drug crimes under a “three strikes” law in Florida.
In 2005, he sought her help after he learned she was a federal public defender, and she referred him to a law firm that handled clemency cases free of charge. Eleven years later, President Barack Obama commuted his sentence, along with more than 1,700 others convicted of nonviolent drug crimes. He died the year after he was released from prison.
In a speech Friday accepting the nomination, Judge Jackson acknowledged her uncle, but also emphasized that she has several family members who have worked in law enforcement – including her brother, who was a detective in Baltimore.
And she received an endorsement today from the president of the Fraternal Order of Police, Patrick Yoes.
While the FOP was “not always in total accord with her views” while she was on the Sentencing Commission, he said in a statement, “we are reassured that, should she be confirmed, she would approach her future cases with an open mind and treat issues related to law enforcement fairly and justly.”
Confirmation battle looms
While she has been confirmed by the U.S. Senate three times – including, most recently, last year in a 53-44 vote – the stakes of a lifetime appointment to the nation’s highest court will bring heightened publicity, scrutiny, and partisanship.
Both Senate Minority Leader Mitch McConnell and Sen. Lindsey Graham, the ranking member of the Judiciary Committee, promised today that Judge Jackson will receive a respectful hearing. But Senator McConnell added in a statement that she “was the favored choice of far-left dark-money groups.” Senator Graham, who voted to confirm her to the D.C. Circuit last year, tweeted that “the radical Left has won” with her nomination, and that “the Harvard-Yale train to the Supreme Court continues unabated.”
Indeed, all but one current justice has a law degree from Harvard or Yale University: Amy Coney Barrett, who earned her degree from Notre Dame. But supporters say that’s a reductive view of Judge Jackson’s experiences and perspectives.
“It’s the only diversity [issue] they can lament,” says Professor Murray of New York University.
“It’s worthwhile to think about a more diverse educational profile of the justices,” she adds, “but I want to resist the idea that just because someone has been educated at Harvard or Yale they’re somehow out of touch with the American people.”
Out of 116 justices, Judge Jackson would become just the sixth woman, the fourth person of color, and the first with experience as a public defender. Only her former boss came to the court having served on the Sentencing Commission.
And while, if confirmed, Judge Jackson would join a Supreme Court replete with Ivy League connections, she would also join the ideological minority of a very conservative court. This term, the court appears poised to expand gun rights, restrict – or even overturn – the right to abortion, and reduce limitations on religious expression in public schools. Last year, the court ruled unanimously that the retroactivity Judge Jackson and the Sentencing Commission approved for crack offenders only applied in certain cases.
Speaking at the White House today, President Biden praised her as “a proven consensus-builder.” And Judge Jackson added that Justice Breyer – well known for trying to work with his conservative colleagues – had shown her that a justice “can perform at the highest level of skill and integrity while also being guided by civility, grace, pragmatism, and generosity of spirit.”
In addition to Justice Breyer, she also paid tribute to another famed jurist – Constance Baker Motley, the first Black woman appointed as a federal judge. They share a birthday, she noted.
“Today I proudly stand on Judge Motley’s shoulders,” she said, “sharing not only her birthday, but also her steadfast and courageous commitment to equal justice under law.”
If she’s confirmed, she added, “I can only hope that my life and career ... and my commitment to upholding the rule of law and the sacred principles upon which this great nation was founded will inspire future generations of Americans.”
