Biden’s Nomination of Judge Ketanji Brown Jackson Is a Political Opportunity for Republicans

P resident Biden has nominated Judge Ketanji Brown Jackson to the Supreme Court. She would replace Justice Stephen Breyer, who is retiring at the end of the current term, 28 years after being appointed by President Clinton. A hard-core progressive, Judge Jackson is not the best pick Biden could have made. And that is not solely from the point of view of conservatives, who would prefer a bench full of constitutionalists — textualists who will apply the law as written — but who obviously knew that Biden, who has governed from the left, would never nominate such a jurist.

She is also not the best pick for progressives. With a conservative majority on the Court, a disposition that will not change by swapping out Breyer with a like-minded lefty, progressives would have been better served by a jurist in the mold of Justice Elena Kagan — a skilled progressive strategist, whose collegial manner has paved a loose alliance with the Court’s tractable conservatives, Chief Justice John Roberts and Justice Brett Kavanaugh. That helps progressives dodge some cases they should lose, narrow some losses, and steal the occasional win. Jackson is more in the fiery radical mold of Justice Sonia Sotomayor; the Left may swoon, but a justice who provokes rather than beguiles the Court’s center is not going to get progressives the five votes they need to prevail in big cases.

That said, Jackson is a safe choice for Biden in the sense that she will be confirmed. To me, she has seemed the obvious pick from the start. Not rocket science here; just consider five points:

• She checks Biden’s black-woman box.
• Her academic credentials are stellar.
• She clerked for Justice Breyer. When an administration would like a justice to retire, or a lower-court judge to take senior status, which enables the president to replace them with younger nominees to these coveted lifetime appointments, the jurist — who can’t be forced to retire or go senior — has some leverage to influence the selection of his replacement. It is not surprising, then, to find a number of the retirees replaced by their protégés. We don’t know what discussions may have taken place between Justice Breyer and the White House, of course, but we do know that Justice Anthony Kennedy (who has been friends with Breyer for decades, even before they served on the Court together) was replaced by his former clerk, now-Justice Brett Kavanaugh, after he agreed to retire. (And President Trump may even have helped entice him into retirement by naming yet another Kennedy clerk, now-Justice Neil Gorsuch, to replace the late Justice Antonin Scalia.)
• In the last eight years, Judge Jackson has been confirmed twice by a Senate that has not changed too much. First, President Obama put her on the district court; and then, just last year, President Biden elevated her to the D.C. Circuit Court of Appeals. That tribunal is traditionally a launchpad for Supreme Court elevation, so the senators who voted to confirm her had to know she was a likely future pick. Biden knows that GOP senators Collins, Murkowski, and Graham, who broke Republican ranks to vote for Jackson’s confirmation to the D.C. Circuit, are highly likely to vote for her again. I would not be surprised if there were one or more other GOP votes this go-round. There shouldn’t be, given Jackson’s record, but Supreme Court confirmations garner intense publicity, and some Republicans may fear being demagogued if they oppose the first black woman justice, even if she should be opposed on the merits. In any event, Biden need not worry much about the 50-50 Senate (or even the current 49–50 Senate — Democrat Ben Ray Lujan, who is recovering from a stroke, will probably be back in time to vote on the nomination later this year). With a few Republicans pried away, the president will have the margin he needs to get Jackson across the finish line.
• Finally, Jackson had one advantage for Biden that no other nominee could offer: Her appointment to the Supreme Court would open up another slot for Biden to fill on the D.C. Circuit. To the government, the D.C. Circuit is the most important appellate court in the country because the vast majority of litigation involving federal agencies occurs in Washington. Those cases get appealed to the D.C. Circuit.

All that said, it is regrettable that Biden made such an issue of Judge Jackson’s race and sex. There is no longer anything unusual in our country about black women being elected or appointed to powerful government posts. Biden did the process and Judge Jackson no favors by the way he went about this. Indeed, it was incompetent: All he needed to do, since the decision was all his, was first say he was going to pick the best nominee he could find, and then pick Jackson or one of the other highly accomplished black women who were under consideration. Instead, Biden being Biden, he elevated immutable characteristics over impressive achievements, leaving his nominee vulnerable to the criticism that she may not have been the best candidate available. This is unfair to Judge Jackson — I am not a fan of her jurisprudence (I’m firmly a Justice Clarence Thomas devotee), but on paper she is as qualified as anyone, regardless of race or sex.

Hopefully, Republicans will not fall into the trap Biden has tried to lay — i.e., making any opposition to Jackson a matter of racism and/or sexism rather than judicial philosophy. I sense that this was what Senate minority leader Mitch McConnell was getting at when he recently said he had no problem with Biden’s predetermination to make a “long overdue” appointment of a black woman to the court. McConnell wants to take race and sex off the table as anything other than symbolic considerations. I’d translate his remarks as: “There’s no reason at this point for anyone to think a black woman would not be an excellent and highly fitting addition to the Supreme Court. Now, let’s get down to examining whether this particular black woman would be an excellent and highly fitting addition.”

Of course, the political reality here is that Judge Jackson’s nomination is not a hill to die on for Republicans. At issue is not a philosophical sea change, such as the progressive-to-constitutionalist shift from Justice Ruth Bader Ginsburg to Justice Amy Coney Barrett. There is not a glimmer of daylight between Jackson and Breyer. She will not alter the Court’s trajectory.

Republicans can’t derail her nomination, so there is no reason to be strident about it. They should use the Jackson nomination for two critical purposes, both of which will advance their political prospects and the state of the judiciary. First, they should show the nation, after the Left’s deranged jihad against Kavanaugh and its inane conspiracy theories about Barrett, that it is possible to oppose a nominee while exhibiting respect and admiration for her achievements, rather than trying to destroy her character. Second, they should use Jackson’s record and dogmatic progressivism to highlight for the country the radicalism of Biden’s judicial appointees.

This won’t stop Judge Jackson from taking a seat on the Supreme Court. But it will help Americans see what’s at stake in 2022 and 2024. We need a Republican Senate as a check on Biden’s capture by the woke Left — the president will have to pick more reasonable nominees to get them through a GOP-controlled Senate. And we will need a Republican president if crucial judicial vacancies are to be filled with constitutional conservatives.