President Joe Biden’s announcement on Friday that he will nominate D.C. Circuit Court Judge Ketanji Brown Jackson to the U.S. Supreme Court is welcome news on several fronts. First, Jackson is a stellar jurist, who brings an invaluable set of experiences to the critical work of the high court. As a former public defender with a family member who has weathered the inequities of the American criminal justice system, Jackson will bring a unique vantage to a right-wing court that has ruled strongly in the interests of the U.S. carceral state. Jackson is in fact the first former public defender to be nominated to the Supreme Court; the last justice to serve on the court with a background in criminal defense was Thurgood Marshall, who retired in 1991.
Then, of course, there’s the historic character of Jackson’s status as the first Black woman to be nominated to the high court. Much punditry from the right and the mainstream press alike has focused on this issue, and suggested for weeks prior to today’s formal announcement that Biden’s commitment to name a Black woman to the court was somehow in violation of the sacrosanct and impersonal qualifications that presidents must weigh in naming Supreme Court nominees.
In reality, Jackson’s nomination is long overdue. Contrary to the implicit claims of these bad-faith commentators, Black women have long done vital and distinguished work in the US justice system—and yet they remain grievously under-represented in positions of judicial authority. Black women make up just 2 percent of the candidates ever nominated to the federal bench, and Black women who have done groundbreaking litigation and legal scholarship still fight for basic recognition and equity in American law. Constance Baker Motley was the first Black woman lawyer to argue a case before the Supreme Court and the first Black woman nominated to the federal judiciary—yet despite her distinguished record in arguing landmark civil rights cases such as Brown v. Board of Education, she never came up for consideration for the high court. Likewise, Pauli Murray was denied full recognition within the US legal establishment during her lifetime due to her race and gender.
Jackson’s nomination promises to help revive a social democratic vision of the judiciary’s role while also addressing real historic failures of representation on the high court. And Jackson’s record on the federal bench speaks directly to these priorities, in cases ranging from challenges to basic environmental regulations to disputed provisions of the Americans with Disabilities Act. In her best-known ruling, Judiciary v McGahn, Jackson upheld fundamental principles of executive branch accountability to the legislature at a time when the Trump White House was running roughshod over such protections while it fought to fend off the House Judiciary Committee’s inquiry into Russian collusion with the 2016 Trump campaign.
What’s more, Jackson’s judicial experience is itself exemplary. She’s served nearly nine years on the bench—a tenure that’s longer than that of four other justices—Roberts, Kagan, Thomas and Barrett—combined. It’s also a longer tenure than that of 7 of the past 19 nominees to the high court boast—and longer than that of 43 of the 58 total nominees put forward since 1900.
Jackson’s record on the bench can and should speak for itself in the coming debate over her nomination—while it’s also indisputable that her background as both a Black woman and onetime public defender will bolster the perilous standing of a high court that for the past 40 years has been drifting steadily into the organized defense of white patriarchal power, untrammeled carceral expansion, and antidemocratic readings of constitutional law. For reasons of both representation and substance, the African American Policy Forum welcomes the historic nomination of Ketanji Brown Jackson to the US Supreme Court—and calls on the Senate and the mainstream media establishment to do the same.
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