by Abbie Cawser, April 26, 2022
One of the most recently reported-on events are the confirmation hearings of Judge Ketanji Brown Jackson, as she becomes the first ever African American female nominee to the United States’s highest judicial court. Her hearings are currently being discussed everywhere from mainstream news shows to TikTok, highlighting the trend of increased public interest in the Supreme Court and increased personality politics that have breached the Court in recent years.
Unlike many similar institutions around the world, the Supreme Court of the United States is an inherently political one, where Justices are easily placed on the Liberal-Conservative scale. It is now seen as an accomplishment of the President to place someone on the bench– not because it is an opportunity for greater education and stronger debate, but because it increases the likelihood of the President’s policies passing easily through the judicial branch. Retirement of Justices is now strategically planned, with Justices of a certain political leaning delaying or expediting their retirement in order for it to occur under a President they support, so that their replacement would be of a similar ideology. When Justice Ruth Bader Ginsburg passed away, Republicans rushed to pass Justice Amy Coney Barrett’s appointment, as it was just a month before the 2020 election and former President Donald Trump risked losing the opportunity. This is an inherent risk with lifetime appointments, as electing Justices of roughly similar ages means that there are often multiple vacancies opening up all at once, and some Presidents are given the opportunity to appoint multiple Justices. In four years, Presidents Trump and Richard Nixon appointed three and four SCOTUS Justices, respectively, whereas both Presidents Barack Obama and George Bush Jr. each appointed just two in their eight years (and no vacancies opened up during President James Carter’s term). The opportunity to elect a Supreme Court Justice was a rare one, so Presidents needed to take the chance to appoint someone who will support as many of their policies as possible.
Never before has such scrutiny been placed on a Supreme Court nominee as that on Ketanji Brown Jackson. Her initial naming was controversial, as many took issue with President Joseph Biden’s campaign statement that he would appoint “the first Black woman ever nominated to the United States Supreme Court,” with some claiming that this undervalued the Court, arguing that “a nominee’s race or gender should not play a role in Biden’s selection process.” However, this argument is not unique in 2022, as in 1980, President Ronald Reagan made a promise to elect a female Justice, stating that he would appoint “the most qualified woman [he] can possibly find.” Whilst he failed to do so, with the first female Justice coming 13 years later with President William Clinton’s appointment of Justice Ruth Bader Ginsburg, Reagan’s campaign promise was not dissimilar to Biden’s, as it suggests nomination based on an underrepresented demographic (in this case gender). It is also important to remember that Reagan’s statement crosses party lines, and whilst not all of the outrage against Biden’s statement came from Republicans’, they were certainly the leading voice. Parties have become so polarised that they are now disagreeing with issues that their own party championed just 40 years ago, and this has concerning implications for the future of bipartisanship.
However, the arguments over Biden’s decision limits Judge Brown Jackson’s candidacy to a discussion just about race. Senator Ted Cruz questioned her on children’s books such as “Antiracist Baby” by Dr. Ibram X. Kendi, asking questions such as her opinion on critical race theory and if she “thought babies were racist.” Whilst critical race theory is a widely debated issue across the country right now, it is important to note that neither Justices Brett Kavanaugh nor Amy Coney Barrett were questioned on this topic, and certainly neither of their confirmation hearings involved scrutiny of children’s books. Senate Minority Leader Mitch McConnell said he would vote against Brown Jackson’s appointment, as she has refused to comment on the issue of adding seats to the Supreme Court, in agreement with Justice Coney Barrett, as she too had refused to comment on the issue. However, when speaking of Amy Coney Barrett, Mitch McConnell stated that she was an “incredibly impressive jurist and highly qualified nominee.” Whilst it is far from surprising that a Republican leader would denounce a Democratic pick for the Supreme Court, it is vital that the arguments made against her are scrutinised and understood, just as those made against Republican picks must be as well. In a similar vein, there has been little discussion within mainstream news of how she is the most qualified lawyer of all those sitting on the Court. The following graphic has gone somewhat viral on social media, which compares Judge Brown Jackson’s legal history with the 9 other Justices.
The Supreme Court as an institution works best when it is diverse and varied. At its very core, its function is to scrutinise the workings of the government, and this will never work when unbalanced and biased. Whilst legal systems in other countries work with the core foundation of neutrality, the entire government of the US was created with the idea of ambition challenging ambition. Every Justice, just like every President and every Congressman, has their own personal views, and the system operates best when each opinion is challenged and picked apart by an equally represented, but opposite opinion. The presence of Brown Jackson, as a left-leaning voice on the Court, would merely replace Justice Stephen Breyer, who is leaving the Court, and therefore the Court would still be politically unbalanced, with six of the nine Justices – Clarence Thomas, Samuel Alito, Neil Gorsuch, Amy Coney Barrett, Brett Kavanaugh, and John Roberts – representing Conservative ideals. Whilst it would be politically beneficial for Biden to appoint a liberal Justice as he has done, it will still have little effect on the Court’s overall ideology. What Judge Brown Jackson does provide, however, is a wealth of knowledge and experience, and this can only improve the Court, as the healthiest thing in a democracy is well-educated representatives. Whilst her race undoubtedly allows her to have an important voice for a consistently underrepresented group, it would be unjust and unrealistic to say that she represents the views of every Black woman, just as it would be incredulous to think that race places a role in every decision she would make on the Court, especially considering the wide range of issues they rule on each year.
The intention of this essay is not to suggest that Ketanji Brown Jackson is a perfect candidate, or even that scrutiny of her should be easy. Senate confirmation hearings are supposed to be of great substance and hard questioning, as this is the only way to achieve the most accomplished Court possible. However, the questioning placed upon one Judge should be equal to that of another, and this is not being done. President Biden’s criticism that race should not be important when choosing nominees can only remain valid when it coexists with fair treatment under questioning, and therefore Judge Brown Jackson’s questioning should not be entirely centred around her race. By asking questions about antiracist babies and asking her to rate her religion on a scale of 1-10, we dismiss the real debate that should be occurring in regards to the Supreme Court– by having a highly politicised Court in which Presidents can only effect change in the instance of retirement or death, are we rendering the judicial branch of government inoperable and imbalanced, and how can we protect the Court from this? Will set term limits allow for a more structured and less random appointment process, so that Presidents use their appointing powers in equal measures, or will this defeat the Founders’ intentions when creating an effective Court?
Bibliography
Barabak, Mark Z. “Column: The architect of Reagan’s pledge to put a woman on the Supreme Court says it was all political.” Los Angeles Times, Feb 2022
Burtt, Kristyn. “Ketanji Brown Jackson Faced Some Astonishingly Stupid Questions About Racism From Ted Cruz.” SheKnows, March 2022
CBS News. “Full Transcript of the South Carolina Debate.” CBS, Feb 2020
Kaslovsky, Jaclyn and Andrew Stone. “Biden vowed to nominate a Black woman to the Supreme Court. It might be good politics.” The Washington Post, Feb 2022
McMillion, Barry J. “Supreme Court Nominations 1789 to 2020.” Congressional Research Service, March 2022
Mitch McConnell Senate Website. “McConnell Praises Judge Barrett and Denounces Attacks on Judicial Independence.” The Newsroom Remarks, Sept 2020
Quinn, Melissa. “Mitch McConnell says he opposes Ketanji Brown Jackson’s Supreme Court nomination.” CBS News, March 2022
Schwarz, Frederick A. “Saving the Supreme Court.” Brennan Center For Justice, Sept 2019
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