Ketanji Brown Jackson Confirmed to the Supreme Court
Ketanji Brown Jackson was confirmed by the U.S. Senate on Thursday, becoming the first Black woman Justice in the nation’s history.
Jackson was unanimously confirmed by the Supreme Court. The vote was 53 to 47 with bipartisan support. Republican Senators Mitt Romney of Utah, Susan Collins of Maine, and Lisa Murkowski of Alaska joined the Senate’s 50 Democrats to support her confirmation. Jackson is set to assume her position in retiring Justice Stephen Breyer’s seat next term, which begins in October.
“Judge Jackson’s confirmation will be a glass shattering achievement for America,” said Senator Dick Durbin, a Democrat from Illinois.
Jackson’s historic confirmation will not change the ideological makeup of the Supreme Court. She joins a bench with a 6-3 conservative majority—the smallest liberal minority in a generation. Former colleagues and mentors of Jackson’s tell TIME they expect she will strive to be in the majority with her colleagues whenever possible, seeking out compromise and consensus from the minority position.
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Jackson’s bipartisan confirmation is a win for President Joe Biden, after a contentious and at points inflammatory confirmation process. Jackson, the 13th Democratic nominee to the Supreme Court, brings a wealth of professional experience, which the court otherwise doesn’t have. She is also an expert on criminal justice issues and sentencing disparities. Jackson is a former judge at the D.C. Circuit Court will serve as the Supreme Court’s former public defender.
With rulings on religious liberty and gun rights as well as abortion access, the high court has potential to reshape American society in the next few months. Its image is also at risk due to increasing political polarization. There are increasing calls to change the composition and operation of the court, including from progressives who want to increase its number or limit the length of its term. Jackson will be present to view any proposed changes to the staid institution. Jackson, 51, is likely to continue in her position for many decades.
The confirmation of Bruising received bipartisan support
Democrats’ narrow control of the Senate all but ensured Republicans could not block Jackson’s confirmation, and Senators in both parties publicly acknowledged she was qualified for the position. But her confirmation hearings were still heated—at times tinged with racial undertones—and the ugliness of the process helped sway at least two Republicans to vote for her.
Murkowski said Tuesday that her support of Jackson not only rests on the judge’s qualifications, but also on the “rejection of the corrosive politicization of the review process for Supreme Court nominees,” which she said “is growing worse and more detached from reality by the year.” Collins also commented on the “broken” Supreme Court nomination process in announcing she’d support Jackson, saying she has no doubt she will not agree with every vote Jackson casts. “That alone, however, is not disqualifying,” Collins said. In her view, she continued, the role of the Senate is to examine the experience, qualifications and integrity of a nominee—not determine how she will vote ideologically.
During the process, Republicans accused Jackson of being weak on crime and issuing light sentences to child porn offenders, which fact-checkers refuted and the White House called a “QAnon signaling smear.” Senators’ questions repeatedly focused on culture war debates. Senator Ted Cruz, a Republican from Texas, asked her if “babies are racist” after describing an anti-racist book taught in a school she’s affiliated with. Senator Marsha Blackburn, a Republican from Tennessee, asked Jackson she could define “woman,” seemingly hinting at litigation over transgender rights working its way through the court system.
In recent years, Supreme Court confirmations have been more partisan. Justice Sonia Sotomayor was the last Democratic nominee. She was approved by Senate with 68 to 31 votes. Nine Republicans supported her. Looking back further, ex-Justices Ruth Bader Ginsburg, and Antonin Scolia, were respectively confirmed 96-3 and 99-0. Yet with only three Republicans supporting her, Jackson’s confirmation was more bipartisan than the previous two: Amy Coney Barrett garnered no Democratic votes, and Brett Kavanaugh got support from one Democrat.
The partisanship in Congress did not seem to erode Jackson’s support among the public. A March 30 Marquette University Law School poll found that 66% of adults said that they supported Jackson’s nomination.
Jackson: What can you expect?
Jackson is a respected judge known for her meticulous work. She writes long opinions and works closely with colleagues. Ex-mentors believe she will work with the majority. However, her current court makeup may mean she will most likely be in opposition.
Jackson will be in the ideological minority for the foreseeable future, and those who know her expect she’ll follow the model of Justice Breyer, for whom she once clerked. Although some Justices are trying to create ideology and shape schools of legal thought through writing sharp dissents and shaping doctrine, Breyer tried voting with the majority as much as possible in order to impact the language and final outcome of cases. In 2020, he said, “A dissent is a failure.”
Kenneth Feinberg, a close friend of Breyer’s whose law firm Jackson worked for from 2002 to 2004, says he believes Jackson learned from Breyer that “securing five votes is better than writing a lone dissent.” First Circuit Judge Bruce M. Selya, who Jackson clerked for in 1997, also says he does not believe Jackson has a “predilection to dissent.”
Jackson acknowledges the ability to write dissents when needed. During her confirmation hearing, Jackson said there have been many Justices before her that have used the “dissent mechanism” to describe their opinions in ways that “become persuasive to others in the future.”
Melissa Murray, a NYU law professor and Jackson’s new partner will make them the hobbled liberal minority of all time. The Supreme Court’s ideological balance was similar during Reconstruction. During that period, Justices from the minorities, such as John Marshall Harlan, used their dissensions to set the stage for challenging rulings they did not agree with decades later. “There’s something kind of ironic that Black women have finally achieved what is the pinnacle of success in the legal field, but it comes at a time when their voices may be particularly muted,” Murray says.
Murray believes Jackson could find consensus with her conservative peers on criminal justice matters, in which Justices Sotomayor or Neil Gorsuch already have formed unusual alliances. Jackson’s colleagues may recognize her expertise, and seek perspective when such questions come before the bench.
Jackson’s historic tenure on the nation’s highest court will begin next term, which will include consequential cases including two challenges to affirmative action in higher education. While Jackson will recuse herself from the case centering on Harvard, as she serves on the school’s Board of Overseers, she has not said she’ll recuse herself from a challenge to University of North Carolina’s policy. Jackson could make this the first of many cases during her lifetime in which she addresses some of America’s most pressing questions. And she’ll speak with a voice and perspective never before represented in the storied institution.
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