Ketanji Brown Jackson hearings to highlight a missing perspective on SCOTUS

(USN) – Judge Ketanji Brown Jackson will be in the hot seat next week as she heads into a series of high-profile hearings to become the first Black woman on the Supreme Court. And while it’s unclear how much bipartisan support she’ll receive – if any – she’s poised to have a much smoother path to confirmation than nominees in recent years.

Jackson, who currently serves on the D.C. Circuit Court, will face four days of hearings, starting with introductions on Monday and followed by two days of questioning by senators on the Judiciary Committee who will examine and parse her judicial record, work history and legal philosophy. Thursday will be the final day with testimony from the American Bar Association.

The vacancy created by Justice Stephen Breyer gave President Joe Biden the opportunity to select his first Supreme Court nominee and to also follow through on his long-held promise to choose a Black woman. Jackson would also make history as the first federal public defender.

If confirmed, Jackson will be only the third Black justice in the Supreme Court’s 232-year history. Thurgood Marshall built a civil rights legacy that began before he took the bench when he argued the 1954 Brown v. Board of Education case, which struck down racial segregation in schools. Clarence Thomas, who has served on the court for the past 30 years, was Marshall’s successor but became a justice with a very different record and a staunchly conservative voice that has at times been at odds with the priorities of many Black Americans.

Jackson’s historic appointment and likely confirmation is occurring alongside what some Supreme Court historians consider a major inflection point for the high court – a moment in which the justices are poised to hear and decide a number of cases that could dismantle support systems put in place to ensure that boys and girls of color born in the wake of the civil rights movement, like Jackson, could grow up to be Supreme Court justices.

“This term is a term where issues of the role of race in America are going to be squarely heard by the U.S. Supreme Court and there are certainly a number of justices on the court who have been very skeptical of any form of race consciousness in American law,” says Alicia Bannon, director of the judiciary program at New York University Law School’s Brennan Center for Justice.

“Jackson would be joining the court at a moment when questions of the role of race in America and the role of the court and law in addressing racial justice in America are going to be front and center,” she says. “She has a very different set of life experiences and perspectives from Justice Thomas as well as other members of the court. Her parents went to segregated schools growing up and she’s confronted racism in America in a whole host of ways. That perspective will be crucially important as the court takes on these issues.”

Bannon says an entire body of research has documented the significant impact diversity has on judicial benches.

“Having women or people of color represented on the bench is relevant not just in how they view cases but in how they impact their colleagues because judges talk to each other and they deliberate,” Bannon says. “Having those perspectives can influence how their colleagues think about an issue or understand the facts in front of them.”

During the upcoming term, the justices will navigate cases – including affirmative action, abortion and voting rights – that could set state and local governments on the path of policymaking that hews to a conservative majority’s view that laws governing society should reflect a post-racial America, even as the country continues enduring a pandemic that’s exacerbated racial fault lines.

Civil rights groups expect Jackson to face next week’s Senate hearings with the public defender disposition that’s characterized much of her judicial career – providing a voice for some of the country’s most vulnerable individuals – and, if confirmed, to inject opinions and dissents with that same focus.

“This is one of the reasons why this nomination is so important to so many people, and it is because it concerns the fundamental question of equity in our country and what we state in our Constitution versus how laws have created structural inequity,” says Patrice Willoughby, vice president of policy and legislative affairs at NAACP.

“That background of having diversity [on the bench] brings the lived experience of the judge and the justices as a screen through which they view the law,” she says. “So those perspectives need to reflect the diversity of the American people to ensure that equity does receive the lens through which we evaluate law and precedent.”

Biden’s initial pledge to nominate a Black woman was met with initial fierce criticism from some Senate Republicans, despite past GOP presidents vowing to choose a woman for the high court. Some lawmakers referred to it as “racial discrimination.” Conservatives outside of Congress like Fox News host Tucker Carlson wanted to see her LSAT scores, which critics panned as racist.

Strategists who focus on the advancement of women of color in government and politics argue they face higher standards and expectations than their white counterparts, particularly when dealing with a position of power.

“As we enter into witnessing history next week, what we’re going to be reminded of is women of color continue to have to defend their leadership and qualification,” says Glynda Carr, president of Higher Heights for America PAC. “I believe when we look back in a generation that she’s going to shape not only opinions … but the perception of what the court can be for Americans.”

Even in a time of paralyzing partisanship, Jackson is expected to face a much less tense environment when she goes before the Senate Judiciary Committee.

All three of former President Donald Trump’s Supreme Court nominees confronted more contentious confirmation hearings, especially as Republicans worked to cement their majority on the court. In 2018, now-Justice Brett Kavanaugh faced an emotional and combative hearing that was consumed by sexual harrassment allegations, which he has denied.

But because a Jackson confirmation won’t change the balance of the 6-3 conservative bloc, the stakes are a lot lower for Republicans compared to the previous ones for Democrats.

Senate Judiciary Committee Chairman Dick Durbin of Illinois said he wants his panel to revert back to how it used to operate, telling reporters this week he hopes “the free-for-all Kavanaugh hearings was an unusual circumstance brought on by unforeseen circumstances.” And even as they raise initial concerns about Jackson, Republicans are promising a change in tenor from past confirmation hearings and say they’ll treat the nominee with respect.

The biggest open question is how many Republicans could get behind Jackson. During her confirmation to the D.C. Circuit last year, Sen. Lindsey Graham of South Carolina, Sen. Susan Collins of Maine and Sen. Lisa Murkowski of Alaska supported her, though none of them are guaranteeing a similar vote this time around. Even if no Republicans back her, Democrats alone can confirm her because Supreme Court nominees only need a simple majority, or 51 votes.

In terms of what Democrats’ approach may look like, they’ll likely steer clear of some of the more hot-button topics. But Durbin, who’s supportive of Jackson, said he encouraged his members to press her on important issues even if they’re controversial.

While the hearings are unlikely to be a spectacle or produce major fireworks, Republicans are still expected to grill Jackson, particularly over whom she’s represented while working in criminal defense. They’ve already questioned her work defending Guantánamo Bay detainees. More broadly, they’ve labeled her as a “radical” pick backed by “dark-money groups.”

“It’s unsettling that senior Democrats have lauded Judge Jackson for the ‘empathy’ they suggest shapes her judicial approach,” Senate Minority Leader Mitch McConnell of Kentucky said in floor remarks on Thursday. “If you’re the litigant for whom the judge has special pre-existing empathy, well it’s your lucky day. But the other party’s being denied their fair day in court.”

On top of that, Senate Judiciary Committee members with presidential aspirations are also likely to use the spotlight of Supreme Court hearings as a way to stand out and cross-examine the nominee in a made-for-TV moment.

Another major line of inquiry expected from Republicans will focus on whether Jackson would recuse herself from a high-profile affirmative action case involving Harvard University, her alma mater and where she is currently serving out the last two months of her six-year appointment to its Board of Overseers.

The line of questioning is common during the confirmation process and took center stage in 2020 during Democrats’ inquiry of Justice Amy Coney Barrett, who, while a professor, voiced criticism in 2017 over a Supreme Court decision that preserved the Affordable Care Act. At the time, the court was poised to hear another challenge to the Obama-era health care law, from which Coney Barrett did not recuse herself.

On top of that, Senate Judiciary Committee members with presidential aspirations are also likely to use the spotlight of Supreme Court hearings as a way to stand out and cross-examine the nominee in a made-for-TV moment.

Another major line of inquiry expected from Republicans will focus on whether Jackson would recuse herself from a high-profile affirmative action case involving Harvard University, her alma mater and where she is currently serving out the last two months of her six-year appointment to its Board of Overseers.

The line of questioning is common during the confirmation process and took center stage in 2020 during Democrats’ inquiry of Justice Amy Coney Barrett, who, while a professor, voiced criticism in 2017 over a Supreme Court decision that preserved the Affordable Care Act. At the time, the court was poised to hear another challenge to the Obama-era health care law, from which Coney Barrett did not recuse herself.

list of cases from which Jackson recused herself, reported by Jackson to the Senate Judiciary Committee, paints the picture of a judge who is acutely sensitive to concerns of impartiality and one who has gone to great lengths to recuse herself from cases, including a handful of times where the law did not require it.

Federal regulations require that lower court judges disqualify themselves from proceedings in which “impartiality might reasonably be questioned” – though there is no official process for enforcing a justice to do so unless the case presents a financial conflict involving a family member.

Justice Thomas is currently fending off a fresh round of calls that he should recuse himself from cases that intersect with his wife’s activities in support of Trump – including the recent admission that she attended the Jan. 6 rally on the Ellipse prior to the attack on the Capitol – and her speeches condemning the Affordable Care Act. So far, Thomas has not capitulated to the criticism, though he sat out a case in 1996 that examined Virginia Military Institute’s former policy of not admitting women because his son was a student there at the time.

Other justices have been more willing to disqualify themselves.

In 2017, Justice Elena Kagan recused herself from the high-profile challenge to the prolonged detention of immigrants facing deportation because she had authorized the filing of a pleading in an earlier phase of the case. Kagan also recused herself from the first challenge to affirmative action in 2012 due to the fact that she was serving as solicitor general when the Department of Justice filed a friend-of-the-court brief in the case while it was still pending in the U.S. Court of Appeals for the 5th Circuit.

While four of the sitting justices graduated from Harvard Law School – including Kagan, who spent six years there as dean – Jackson’s affiliation runs deeper: She’s served as director of the alumni association, is a member of the Harvard Club of D.C. and the Harvard Black Alumni Society, and one of her children will be a freshmen there in the fall.

Though Jackson’s appointment to the high court would not alter its conservative majority, her decision to recuse herself from the forthcoming case involving Harvard would likely be the death knell of race-based admissions policies that have been upheld by the court for decades as a means to correct systemic racial inequities rooted in the country’s education system.

Earlier this year, the court agreed to revisit the use of race in college and university admissions policies – marking the third time it will do so in the last decade.

Higher education policy experts, academics and college and university administrators defend the consideration of race as part of what they describe as a “holistic” admissions policy, especially at elite schools that most heavily depend on affirmative action to maintain diversity. In fact, many schools are trying to find ways to make campuses even more accessible to historically marginalized students.

While affirmative action and race-conscious admissions practices have been consistently protected by the courts, there’s significant speculation that their legal protections may not hold for much longer. And in recent rulings, judges have taken pains to note that such policies may not be needed in the future. Notably, the latest challenge will be the first to be heard by the court’s 6-3 conservative majority.

Jackson’s potential elevation also comes at a time when the court is considering other landmark cases that’ll have major implications, particularly for women and women of color. Abortion rights are on the line as the court readies a summer ruling on Mississippi’s law banning abortions after 15 weeks of pregnancy. That decision could weaken or overturn the 1973 ruling in Roe v. Wade, which established a constitutional right to access the procedure.

The court also plans to hear arguments likely next term about Alabama’s congressional map as the justices take on more cases revolving around redistricting and racial gerrymandering, which is unconstitutional. On an emergency basis last month, the court blocked the state from creating a second congressional district with a Black majority after a newly drawn map only had one.

“I imagine with the court we have, Judge Jackson will most likely be speaking in dissent and maybe some of that perspective will be a longer term perspective in shaping the court’s jurisprudence over a matter of years or decades,” Bannon says. “But I also think having that voice in the room at the time will be critically important on a host of issues – and maybe especially on issues that the court will be taking up next year on race.”

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