For decades, presidents didn’t have to say much about their Supreme Court nominees. Their pedigree, race and gender was assured: It would be a white man.
In the last century that mold was broken by legendary justices like Thurgood Marshall, the first Black man to serve on the court, and Sandra Day O’Connor, its first woman. Their presence on the court, jurisprudence aside, made the court look more like the America it works for. Ketanji Brown Jackson, who will be the first Black woman on the court if confirmed, will be equally historic. Diversity enhances the court’s credibility in the eyes of the public. This nomination, and this nominee, couldn’t have come at a more important time.
There’s been no lack of comment lately on the public’s diminishing confidence in one of the cornerstone institutions of our democracy.
There’s been no lack of comment lately on the public’s diminishing confidence in the Supreme Court, one of the cornerstone institutions of our democracy. And to be fair to history, there has always been tension between the court’s role as a neutral arbiter of contentious issues, the so-called umpire of the legal playing field, and its perceived participation in the politics of the day. Those concerns are now acute, particularly in light of Merrick Garland’s failed judicial nomination and the successful Republican maneuvering that permitted the last president to stack the court with three justices of his choosing.
The court is charged with deciding contentious, difficult issues that Americans can’t settle in any other dispute-resolution mechanism in our society. The court decides high-profile issues like abortion and voting rights, but it is also charged with defining criminal conduct, the rights of suspects, how business is conducted and how much power the federal government has. And the court doesn’t have an army to enforce its decisions. It relies on the public’s willingness to abide by them. It only has the power to make and enforce its decisions because we are willing to give the court that authority.
The issue of flagging confidence in the court isn’t just a matter of public opinion polls and justices’ popularity. It’s a matter of significance for the future of the country at a time when our institutions are stretched bone thin and public confidence in them is at epic lows. So it makes sense that a presidential administration that says it is committed to restoring America’s institutions would make the commitment real.
Judge Jackson is highly qualified, and we should expect no less. President Joe Biden did not select her for her partisanship. Jackson has more years of experience on the bench that most of the nominees who preceded her. But it’s what she did in the years before she became a judge that underscores her suitability for the court and her worthiness for bipartisan confirmation.
For one, she would be the first justice since Thurgood Marshall to have experience as a criminal defense lawyer. She worked in the public defender’s office in the District of Columbia and is familiar with the defense perspective, a tremendous addition for a court that today includes only former prosecutors. She has a close family member who was sentenced to life in prison for a nonviolent cocaine conviction. But she also has an uncle who served as Miami’s police chief, as well as a brother and another uncle who were police officers. She herself served on the United States Sentencing Commission.
And it may be that last facet of her experience that brings the greatest value to the court. Her work with the sentencing commission, which shepherds the guidelines used by federal judges in criminal cases, gives her unique insight into some of the most important and complex criminal justice issues the court is likely to face during her potential tenure because they involve when, for how long and under what conditions people can be incarcerated.
Her work with the sentencing commission, which shepherds the guidelines used by federal judges in criminal cases, gives her unique insight.
Jackson deserves a respectful confirmation process, and the country does, too. It should be nothing like the shameful debacle where Republican senators declined to meet with Judge Merrick Garland, let alone bring him up for a vote. After that charade, the Senate must demonstrate that it, too, appreciates the court’s function and is willing to play its constitutional role in naming justices of both parties.
It will also be important to Biden, given his time leading the Senate Judiciary Committee, that the process be bipartisan. The Constitution only permits him to name a new justice with the “advice and consent” of the Senate, and it’s clear he takes that condition seriously. He has already tapped former Alabama Sen. Doug Jones, a moderate who worked well on both sides of the aisle, to introduce the nominee to senators of both parties. Brown received three votes from Republican senators when she was confirmed in 2021. There is no reason that number should not increase given her consistent performance since then. She is the type of judge whose commitment to the rule of law should give all lawmakers confidence that she will execute her constitutional role with diligence. That’s what we want in the federal judiciary.
This nomination won’t change the court's 6-3 conservative majority. But Jackson can become a pillar for restoring confidence in the court, both because of her personal integrity and, if it proceeds as it should, the integrity of her confirmation process. Conservatives may celebrate the new supermajority on the court, but people have to believe that when the court decides hard cases the justices are acting as nine neutral umpires, not as nine political activists. Right now, many don’t, and that’s why confidence in the court has suffered. Jackson’s confirmation process will either begin to restore it or further damage it if the confirmation process is flawed.
Bush v. Gore, one of the most consequential decisions in recent history, demonstrates how important public confidence in the court is. People who strongly disagreed with the court’s decision about the outcome of the hotly contested 2000 presidential election accepted it. They accepted it because they believed decisions of the court in controversial cases were final. In an era of ugly election uncertainty, that’s the kind of confidence the court needs to command today. Hopefully, Republican senators agree.