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United States Supreme Court building, rear. Justice The Guardian of Liberty engraving.

Senate Confirms Ketanji Brown Jackson to a Potential Pathway to Supreme Court

Merrick Garland served as the head prosecutor in the Oklahoma City bombing. Ketanji Brown Jackson served as the judge who ruled against President Donald Trump’s legal advisor, denying Don McGahn absolute immunity during the Robert Mueller investigation.

Garland attended Harvard University as well as Harvard Law School. Jackson did too.

Garland was nominated to serve on the U.S. Supreme Court by President Barack Obama, but Republicans blocked his confirmation under Mitch McConnell’s leadership. Jackson is currently considered a top candidate for a possible open Supreme Court seat under the Biden administration. Still, if McConnell and the Republicans regain control of the Senate over the next few years, she may also be blocked from serving.

On June 14, the Senate confirmed the appointment of Jackson to replace Garland on the U.S. Circuit Court of Appeals in Washington, D.C. Garland is now serving as U.S. Attorney General. Jackson’s confirmation to the federal appeals court came in a 53-44 vote.

Currently, there are 80 lower court vacancies for Biden to fill, including nine on the circuit courts. Biden’s swift nomination of Jackson bodes well for his promises to fill the open seats and diversify the court system. Jackson will be one of a small handful of African-American women working in the circuit courts.

Her appointment validates court watchers who have supported her addition to the Supreme Court for several years. Her new court is considered the second most important court in the country and a breeding ground for Supreme Court justices. Current judges who served there include Justices John Roberts, Brett Kavanaugh and Clarence Thomas. 

Who is Ketanji Brown Jackson?

Jackson was born in Washington, D.C. and raised in Miami. While attending Miami Palmetto High, she realized her gift in oration and rose to become a nationally-ranked oratory competitor. While at Harvard Law School, Jackson served as an editor of the Harvard Law Review; she met her future husband, Dr. Patrick G. Jackson, at Cambridge University. The couple has two teenage daughters.

Early in her legal career, Jackson clerked for three federal judges: Judge Patti B. Saris of the U.S. District Court for the District of Massachusetts, Judge Bruce M. Selya of the U.S. Court of Appeals for the First Circuit and U.S. Justice Stephen Breyer of the Supreme Court. She has also held positions at law firms in Boston and D.C. and the federal public defender’s office. In 2009, President Obama appointed her vice chair of the U.S. Sentencing Commission. During her tenure there, the commission reduced the sentencing guidelines for crack cocaine and other drug-related offenses. 

In 2013, President Obama again singled her out for the U.S. District Court in Washington, DC. Perhaps her most notable case there occurred in 2015 when she voiced a strong opinion against the D.C. Department of Corrections for violating the disability rights of a deaf inmate. While ordering damages paid to the inmate, she wrote the department had shown a “willful blindness” to the inmate’s need for accommodation and had made a “half-hearted attempt . . . far short of what the law requires.” 

A more recent example of Jackson’s powerful work as a judge came in late 2019 when she ruled Donald McGahn must testify in front of the House Judiciary Committee. In her 118-page decision on the case, Jackson wrote, “Presidents are not kings. This means that they do not have subjects bound by loyalty or blood, whose destiny they are entitled to control.” Rather, she continued, “in this land of liberty, White House employees … work for the people of the United States.”

Many social justice groups have applauded Jackson’s nomination to the federal appeals court. The NAACP issued a statement saying the organization welcomed “the depth and breadth’’ of her experience. It also stressed that Jackson’s service as a public defender early on “means she has experience serving the most vulnerable members of society and will help diversify professional perspectives on the appellate bench.’’

Senate Majority Leader Chuck Schumer pointed out before the Senate vote that Democrats were working quickly to close the gap and correct the fact that “women of color have long been underrepresented on the federal bench.’’ Schumer described Jackson as “an outstanding, trailblazing nominee.’’

Will the Road Ahead Lead to the Supreme Court?

While Jackson’s appointment to the federal appeals court is celebrated, some focus on how her progressive voice makes her a prime Supreme Court candidate. The only problem? There are no open seats. 

It is no secret that many individuals on the left are concerned about the imbalance of the Supreme Court. While Republicans had control under President Trump, three conservative justices tipped the scales to a 6-3 conservative majority. Now that Senate Democrats have a slight majority, they are calling for more balance on the nation’s highest court. 

One possibility is that Justice Stephen Breyer, an 82-year-old justice appointed by President Bill Clinton, could retire as early as this summer. Although Justice Breyer has given no indication he is planning to step down, both politicians and special interest groups have publicly encouraged the respected justice to give up his seat.

Breyer’s retirement before the midterm elections would be the easiest way to hold off another conservative justice and enable President Biden to nominate an African-American woman like Jackson. He has spoken openly about the need for such representation on the Supreme Court.

Last week, after McConnell made it clear he would block a Biden Supreme Court nominee if Republicans regained control of the Senate, several groups released statements encouraging Justice Breyer to step down.

Demand Justice, an organization devoted to restoring balance to the Supreme Court, joined forces in the effort with 13 other groups, including Black Lives Matter, Women’s March and Take Back the Court Action Fund. 

“With future control of the closely divided Senate uncertain, President Biden must have the opportunity to nominate a successor without delay and fulfill his pledge to put the first Black woman on the Supreme Court,” said Demand Justice in a June 15th press release

For longtime NPR legal affairs correspondent Nina Totenberg, Jackson’s appointment seems like an easy win. Back in 2016, after the death of Justice Antonin Scalia and before President Obama officially nominated Garland to fill his Supreme Court seat, Jackson was a long shot on the list of possible contenders. Totenberg said if the slot were open today, she would shoot to the top.

 “The 50-year-old judge ticks off just about every box that liberals might want in a nominee, and some that conservatives would want, too,’’ Totenberg said.