Judge Ketanji Brown Jackson, a daughter of schoolteachers who has risen steadily through America’s elite legal ranks, stands on the cusp of history, just two Senate votes away from becoming the first Black woman confirmed as a justice of the Supreme Court.
It began in February with President Biden introducing Jackson as a distinguished nominee who would “help write the next chapter in the history of the journey of America” and reached a climax during two days of tense Senate hearings last month where Republicans sought to paint her as a left-wing radical who had cosseted criminals and terrorists, only for three GOP senators to ultimately reject those claims and support her confirmation.
Jackson’s nomination was advanced on two 53-47 votes earlier this week, and senators of both parties said they expect the same tally for her confirmation Thursday. If confirmed, she will replace Associate Justice Stephen G. Breyer after the Supreme Court’s term ends in late June.
“It will be a joyous day — joyous for the Senate, joyous for the Supreme Court, joyous for America,” Senate Majority Leader Charles E. Schumer (D-N.Y.) said Wednesday evening. “While we still have a long way to go, America tomorrow will take a giant step to becoming a more perfect nation.”
The historic resonance of the moment has been tempered by the polarized reception that Jackson received in the Senate, which has been riven by an escalating series of grievances surrounding judicial nominations stretching back four decades. Jackson’s tally is likely to fall well short of those earned by previous trailblazing nominees, such as Thurgood Marshall, the first Black justice, who was confirmed 69-11 in 1967, or Sandra Day O’Connor, the first woman, who was confirmed 99-0 in 1981.
Democrats’ jubilation has also been accompanied by a measure of anger at the rhetoric some Republicans employed in attacking Jackson’s nomination, aimed at stoking GOP campaign attacks on Democrats as being soft on crime and indulgent of radical views on race and gender. GOP senators found ammunition in her past representation of Guantánamo detainees when she was a federal public defender, her sentencing record as a trial judge on D.C.’s federal bench, and even the curriculum of the private school her children attend and on whose board she serves.
A trio of Republican senators who have signaled higher political ambitions — Tom Cotton of Arkansas, Ted Cruz of Texas and Josh Hawley of Missouri — each used the hearing to interrogate Jackson about sentences she had imposed that fell below federal guidelines, homing in particularly on a group of cases Jackson handled that involved men convicted of trading child pornography over the Internet.
In each of those cases, Jackson’s sentences fellow below federal guidelines and prosecutors’ requests. But they were not out of line for federal judges generally, many of whom have criticized the guidelines for being too harsh on offenders who collect images online without directly harming children.
When Hawley asked Jackson on March 23 whether she regretted one particular sentence, she replied, “What I regret is that, in a hearing about my qualifications to be a justice on the Supreme Court, we have spent a lot of time focusing on this small subset of my sentences.”
Summarizing her approach to the law, Jackson said that she had a “methodology” to decide case but not an overarching philosophy. At times, she agreed with Republican senators about the importance adhering to the plain text of the Constitution and the meaning that text would have had to the Founders, the essence of the conservative legal doctrine of originalism.
“Judges should not be policymakers,” Jackson said. “That’s a part of our constitutional design, and it prevents our government from being too powerful and encroaching on individual liberty.”
Most Republican senators said in explaining their opposition that they simply disagreed with Jackson’s “judicial philosophy,” or at least her inability to define that philosophy to their satisfaction. Top GOP leaders, meanwhile, did little to tamp down the more sordid attacks, with many seeing them as fair game, especially after the searing 2018 confirmation of Justice Brett M. Kavanaugh.
Calling Jackson a “liberal activist,” Senate Minority Leader Mitch McConnell (R-Ky.) on Wednesday said the hearings had, in his view, only heightened conservatives’ concerns about her record. He cited her handling of a case involving the Trump administration’s border policy that was later overturned on appeal, and a sentencing record that he said “slanted … dramatically and consistently in the direction of going soft on crime.”
To three Republican senators, the narrative that Jackson was a partisan extremist did not ring true. Sen. Susan Collins (R-Maine) said Jackson had the “experience, qualifications, and integrity” to merit confirmation and, in backing Jackson, appealed to her colleagues to step back from the partisan brinkmanship that has increasingly dominated Supreme Court confirmations.
Sen. Lisa Murkowski (R-Alaska) said much the same, decrying the “corrosive politicization of the review process for Supreme Court nominees, which, on both sides of the aisle, is growing worse and more detached from reality by the year.” Sen. Mitt Romney (R-Utah), meanwhile, declared Jackson to be “a well-qualified jurist and a person of honor.”
The GOP support for Jackson’s confirmation, minimal as it may be in historic terms, was gratifying to Democrats, who have been eager to put a bipartisan stamp on Jackson’s historic confirmation.
They invited a Republican-appointed judge who serves with Jackson on the U.S. Court of Appeals for the D.C. Circuit, Thomas Griffith, to introduce her to the Senate Judiciary Committee. They sought to counter the GOP soft-on-crime attacks by touting her endorsements from the Fraternal Order of Police, the International Association of Chiefs of Police and other law enforcement groups. And the White House and key Democratic senators kept in close touch with the Republican swing votes to manage any concerns that arose.
Senate Judiciary Committee Chairman Richard J. Durbin (D-Ill.), who shepherded Jackson’s nomination through the Senate, said Wednesday that Jackson was “the right person for the right time for the right job.”
“She’s made it very clear that when it comes to applying the law to the facts, she does it with evenhandedness — so much so that she’s respected by both sides of the table, the prosecutors’ side of the table and the defense side of the table,” Durbin said. “That takes some doing, but she’s achieved it. … She’s going to make history if we give her this confirming vote.”