‘Known quantity’: Senate’s familiarity with Brown Jackson could boost chances
WASHINGTON
One of Judge Ketanji Brown Jackson’s biggest assets as President Joe Biden weighs potential nominees for the Supreme Court is that the federal appeals judge has already been through the Senate confirmation process multiple times.
Senators know her. A lot of them like her. And that familiarity could serve Brown Jackson well if Biden taps the Miami Palmetto High School alum for the vacant seat on the Supreme Court. Finding a nominee with broad appeal who won’t stumble during the heated confirmation process will be essential for Biden.
“She is extremely wellqualified in terms of character and intellect. She was extraordinary in conducting herself,” said Sen. Richard Blumenthal, D-Conn., a member of the Senate Judiciary Committee, which vetted Brown Jackson last year for her current post on the U.S. Court of Appeals for the D.C. Circuit. “She’ll face the usual scrutiny, but she was very wellreceived by a lot of Republicans, even some who voted against her.”
When she appeared before the Senate Judiciary Committee last year a nominee to the D.C. Circuit, she noted at the hearing that she already visited the committee twice before for a pair of confirmation hearings.
Before she became a judge, President Barack Obama appointed Brown Jackson in 2010 to serve as vice chair of the U.S. Sentencing Commission, a panel that oversees federal sentencing guidelines, a role for which received unanimous support from the Senate.
Obama later tapped Brown Jackson to serve as a judge U.S. District Court for the District of Columbia. She was confirmed in 2013 by a voice vote, a sign of bipartisan support.
Eight years later, Biden tapped her for a position on the prestigious D.C. Circuit, widely considered the second most powerful court in the country and a springboard to the Supreme Court. She was confirmed in June by a vote of 53 to 44 after garnering support from three Republicans.
That past support from Republicans has helped elevate Brown Jackson’s name among the field of contenders floated since Biden made his promise to appoint the first Black woman to the court to replace retiring Justice Stephen Breyer.
The confirmation process for the high court has long been heated, especially for recent vacancies. Republicans refused to hold hearings on Obama’s nominee Merrick Garland during the final year of his president. The hearings for former hearings for former President Donald Trump’s Supreme Court nominees were
‘‘ SHE IS EXTREMELY WELL-QUALIFIED IN TERMS OF CHARACTER AND INTELLECT. Sen. Richard Blumenthal
famously contentious. And Biden’s nominee is likely to face sharp scrutiny in the 50-50 Senate.
An evenly divided Senate requires uniform support among Democrats. And GOP support could become necessary if Sen. Ben Luján’s recent stroke incapacitates the New Mexico Democrat longer than expected.
“The single biggest advantage is she’s more likely than any other nominee to get confirmed,” said Ken Feinberg, a Washington attorney who employed Brown Jackson early in her career.
“She won’t be outsmarted,” Feinberg said. “And she will certainly be able to hold her own in any legal debate.”
Feinberg served as chief of staff for Sen. Ted Kennedy when the Massachusetts Democrat chaired the Senate Judiciary Committee. He said Brown Jackson’s past appearances before the committee are a huge advantage.
“I think she has learned at the foot of Justice Breyer and I think she of all of the candidates most mirrors her mentor, Jus
tice Breyer,” said Feinberg, who worked alongside Breyer when they were both Senate aides early in the 1970s.
HOW DOES BROWN JACKSON STACK UP AGAINST OTHER CONTENDERS?
Other top contenders include Judge J. Michelle Childs, a federal judge in South Carolina who Biden nominated in December for a position on the D.C. Circuit alongside Brown Jackson, and California state Supreme Court Justice Leondra Kruger.
Retired Judge Thomas Griffith, who wrote a letter on Brown Jackson’s behalf during her most recent confirmation process, agreed that her experience with the Senate vetting process will serve her well if she is selected.
“She has sat at that table before with microphone on and senators on the dais,” said Thomas Griffith, a George W.
Bush appointee who retired from the D.C. Circuit in 2020. “I think that’s going to help her a lot. She’s a known quantity.”
Griffith cautioned that the difference between confirmation hearings for the lower courts and the Supreme Court is like the difference between a high school basketball game and an NBA game.
But he said Brown Jackson
would enter the process with an impressive resume.
“Her academic record is remarkable. She has a breadth of experience, which is really quite unique. She’s worked at major law firms, she’s been a public defender… she’s been a trial court judge,” Griffith said.
After graduating from Miami Palmetto High School, Brown Jackson attended Harvard for both her undergraduate and law degrees. She clerked for Breyer and worked in the private sector before serving as a federal public defender.
“I think that actually having defender experience can help not only the judge, him or herself in considering the facts and circumstances in the case, but also help the system overall in terms of their interactions with defendants and the way in which they proceed in the courtroom,” Brown Jackson said during last year’s confirmation hearing when asked about her defender experience by Sen. Dianne Feinstein, D-Calif.
“I would think that there would be no difference between defender experience and prosecutorial experience from the standpoint of whether or not someone can do what the law requires and many, many prosecutors have been appointed as judges,” she said. “When you become a judge you take an oath to look only at the law in deciding your cases. You set aside your personal views.”
But even with her long resume and familiarity to the Senate, Brown Jackson isn’t guaranteed to find support from the same Republicans who backed her.
Her Harvard degrees, for example, are potentially a turnoff this time around to Sen. Lindsey Graham, R-S.C., one of the three Republicans who supported Brown Jackson’s confirmation to the D.C. Circuit last year.
Graham– along with House Majority Whip Jim Clyburn, D-S.C.-- has championed the potential nomination of Judge J. Michelle Childs, a federal district court judge in South Carolina who Biden nominated for a position on the D.C. Circuit last month.
Childs is a graduate of the University of South Florida and the University of South Carolina School of Law, which the South Carolina lawmakers say would give the court educational diversity to counterbalance the Harvard and Yale degrees of the other justices.
“I think she brings a lot to the table in terms of diversifying the court.
She brings a common sense view of the world,” Graham told the Herald about Childs.
Asked about Graham and Clyburn, White
House press secretary Jen Psaki said Wednesday Biden’s focus is on “choosing from a wealth of highly qualified candidates who bring to bear the strongest records, credentials and abilities that anyone could have for this role. As you know, he has nominated judges who have not gone to Ivy League schools.
Psaki gave a similar response when asked how heavily Biden will weigh whether a nominee has gone through the Senate confirmation process previously. Biden has promised to announce his pick by the end of the month.
Graham hasn’t ruled out supporting Brown Jackson if the president chooses her over Childs, telling reporters this week, “We’ll cross that bridge when we get there.”
COULD BROWN JACKSON ATTRACT REPUBLICAN SUPPORT?
Sen. Susan Collins, R-Maine, another Republican who backed Brown Jackson’s confirmation to the D.C. Circuit, has repeatedly expressed frustrations with Biden’s pledge to nominate a Black woman on the grounds that race and gender shouldn’t be the determining criteria.
Despite her criticism of Biden’s promise, Collins confirmed to the Miami Herald that she would be open to supporting Brown Jackson if the president chooses her as the nominee.
“Certainly,” Collins said when asked about the judge. “But regardless of who the president chooses I’m going to go through the same kind of process I always go through when there’s a Supreme Court nominee, including a personal interview and assessments of cases, experience, their record.”
Collins said Brown Jackson was clearly qualified for her role on the D.C. Circuit, but she said that doesn’t guarantee the same holds true for the high court. “This is a different job,” Collins said. “But if she is the nominee I will give her every consideration.”
During her confirmation hearing last year for her D.C. Circuit position,, Sen. John Cornyn, RTexas, asked Brown Jackson about the fact that her nomination had been supported by Demand Justice, a liberal-leaning group which advocates for adding seats to the Supreme Court as a way to diminish conservatives’ power on the court.
“Demand Justice believes the Supreme Court is broken. Do you think the Supreme Court is broken?” Cornyn asked.
“Senator, I’ve never said anything about the Supreme Court being broken and again I’m not able to comment on the size, the structure, the functioning even of the Supreme Court,” Brown Jackson replied, noting that as a federal judge she is bound by the court.
Demand Justice’s support for Brown Jackson could come up again in a Supreme Court confirmation process after the group launched a pressure campaign to urge Breyer to retire so Biden could appoint a replacement while Democrats control the Senate.
Sen. Marco Rubio, R-Fla, was one of three Republicans who did not participate in Brown Jackson’s confirmation vote last year. Asked about her Florida ties and whether he’d be open to her nomination, Rubio said he would need to dig more deeply into the judge’s record.
“She’s impressive, you know, her background and the work she’s done by all accounts but for me the criteria goes further than that. It becomes, are you going to be someone that has a record, a proven record of understanding the proper role of the Supreme Court, which is to apply the Constitution and not to write laws,” Rubio said.
“That would be the same answer for anyone who was nominated. Look, I didn’t know a lot about Kavanaugh before he was nominated. I didn’t know a tremendous amount about Gorsuch,” Rubio added.