It was exactly two years ago today when then-candidate Joe Biden stood on a South Carolina debate stage and made some news. “I’m looking forward to making sure there’s a Black woman on the Supreme Court,” the former vice president said. The Democrat added, “I am loyal. I do what I say.”
Nearly two years after, Justice Stephen Breyer announced his retirement, now-President Biden vowed to honor his commitment. The question wasn’t whether he’d nominate a Black woman, it was which of the qualified contenders he’d choose.
There was one seemingly obvious choice, and sometimes the obvious choice gets the nod.
In Barack Obama’s first year in the White House, for example, it seemed so likely that he’d nominate Judge Sonia Sotomayor that ABC News’ George Stephanopoulos predicted it before there was even a vacancy. (We now know, of course, that he was right.)
More than a decade later, much of the political world so expected Ketanji Brown Jackson to be Biden’s choice that “likely Supreme Court nominee” was practically part of her name. And sure enough, the obvious choice will be the nominee. NBC News reported this morning:
President Joe Biden is expected to announce Friday that he will nominate Judge Ketanji Brown Jackson, of the U.S. Court of Appeals for the District of Columbia Circuit, to succeed Justice Stephen Breyer on the Supreme Court, according to three sources familiar with the matter.
The Supreme Court has had two Black justices and five women justices, but if confirmed, Jackson would be the first ever Black woman to serve on the high court.
The reason she was considered the odds-on favorite is that she brings an impressive record to the table. Jackson, a former Breyer clerk, is a respected jurist on the U.S. Circuit Court of Appeals for the D.C. Circuit, widely seen as the nation’s second most important federal bench and a routine launching pad for Supreme Court justices.
She would also be the first justice since Thurgood Marshall with significant experience as a defense attorney — Jackson even worked as a public defender — which is a welcome change from the kind of legal work we’re accustomed to seeing from other Supreme Court nominees.
As for how she’ll be greeted on Capitol Hill, the public may be accustomed to some brutal confirmation fights, but Jackson’s odds of being confirmed are quite high. For one thing, she probably won’t need any votes from the Senate Republican minority: Filibusters for judicial nominees are a thing of the past.
For another, Jackson may well very well enjoy at least some GOP backing: Last June, her appellate court nomination came to the Senate floor, and while the vast majority of Senate Republicans voted against her, three GOP senators — Maine’s Susan Collins, Alaska’s Lisa Murkowski, and South Carolina’s Lindsey Graham — voted to confirm her.
It’s possible, of course, that these Republicans would support her in 2021, only to oppose her in 2022 — if recent history has taught us anything, it’s that senators like Graham are not concerned about being accused of inconsistencies — but the fact that Jackson enjoyed bipartisan support in her last confirmation vote increases the likelihood that she’ll fare well in her next confirmation vote.
The key will be unanimity among Senate Democrats, which seems like a relatively safe bet. Yes, senators such as West Virginia’s Joe Manchin and Arizona’s Kyrsten Sinema have demonstrated a willingness to buck their party, but since Biden has become president, these center-right Democrats have balked at exactly zero judicial nominees from the Biden White House. Literally, none.
It's difficult to imagine the duo breaking the trend now.
The coming confirmation process will probably offer at least some drama and attacks from ambitious Republicans eager to show their base how “tough” they are, but if these offenses materialize, they won’t just fail — they’ll backfire. The Democratic base is likely to back Jackson enthusiastically, and the more the GOP tries to tear her down, the more Democrats will be motivated ahead of the midterm elections in the fall.
In October 2020, the Republican majority acted with great speed and efficiency to confirm a conservative nominee. Don’t be surprised if this year’s Democratic majority follows a similar timeline.