President Biden has selected Judge Ketanji Brown Jackson as his Supreme Court nominee to fill the seat left when Judge Stephen Breyer retires, sources tell NPR’s Nina Totenberg.
Brown Jackson, 51, has led a professional and personal life at once classic and unpredictable. Unlike most judges, her background is not as a prosecutor or major corporate lawyer, and her personal life also defies stereotypes.
Professionally, she is an experienced judge. For eight years, she served as federal trial court judge, and last June was confirmed for a seat on the U.S. Court of Appeals for the District of Columbia.
Prior to her becoming a judge, her legal experience was extensive and varied. While four members of the current court were at one time prosecutors, Jackson, if appointed, would be the first Supreme Court justice since Thurgood Marshall to have represented indigent criminal defendants.
Work as a public defender
In addition to her work as a public defender, she practiced at law firms large and small and served as vice chairman of the U.S. Sentencing Commission at a time when it sought to reduce the draconian penalties for crack cocaine, penalties that were 100 times more severe than for powder cocaine. At the Sentencing Commission, she earned a reputation for building consensus, and most of the panel’s decisions were unanimous.
For Jackson, sentencing was not an abstract matter. One uncle is a former Miami police chief; another was a sex crimes detective; and her younger brother was a Baltimore police undercover agent. But her family also has had experience with the scourge of drugs. Her father’s older brother was sentenced to life in prison under a federal three-strikes law aimed at repeat drug offenders.
After more than 15 years behind bars, he contacted Jackson, by then a public defender, seeking help. According to The Washington Post, Jackson felt sympathy for her uncle, but saw no legal options for him at the time. Later, though, after learning that the law firm of Wilmer Hale was handling clemency cases free of charge, she referred her uncle to the firm. The Post quoted Wilmer Hale as saying that the case was referred “years before Judge Jackson became a federal judge” and that “she had no further involvement in the matter.” Eventually, the uncle would be one of 1,700 people whose sentences for non-violent drug crimes were commuted by President Obama, more than the past 12 presidents combined. By the time of the uncle’s release, he was 78 and in poor health. He died four months later, according to the Post.
In 2012, Jackson was nominated for a seat on the federal trial court. Her confirmation went smoothly with numerous lawyers on the right, as well as the left, supporting the nomination. She was confirmed for the trial court by a voice vote in 2013.
As a trial judge, Jackson earned a reputation for hard work, a raucous laugh and more than 500 opinions, some of them noteworthy not just for the outcome but their length.
Perhaps the most prominent was an opinion ordering President Trump’s former White House counsel Don McGahn to appear before the House Judiciary Committee to testify in its investigation into allegations of Russian interference in the 2016 elections. In it, she wrote, “Presidents are not kings. This means that they do not have subjects bound by loyalty or blood, whose destiny they are entitled to control.” The opinion, which numbered some 119 pages, took four months to write, however, and allowed Trump to essentially run out the clock as president. Ultimately, McGahn did finally testify before the committee in 2021 after the Justice Department, by then under control of the Biden administration, and the committee reached an agreement on the terms of his testimony.
In 2018 Jackson, in another decision against Trump, ruled in favor of federal employee unions that were contesting several executive orders limiting the collective bargaining rights of federal workers. A federal appeals court panel reversed her decision on grounds that the unions had to pursue their claims first through an agency administrative process, and only after that, the appeals court said, could the unions go to federal court.
In another Trump-era case, Jackson sided with the administration, concluding that the Department of Homeland Security could waive more than two dozen environmental laws in order to construct a segment of the wall along the U.S. border with Mexico.
Grilled by Senate Republicans on race
Jackson’s nomination to the D.C. Circuit also went relatively smoothly after she was nominated by President Biden last year., Still, she got quite a grilling from some conservative senators on the Judiciary Committee. Sen. Josh Hawley, R-Mo., for instance, asked her this question: “Do you think that the U.S. criminal justice system is systemically racist or is infected with systematic racism and bias?”
“Those are not terms that I use in the law when we look at issues of race,” she replied, adding that in examining whether there has been race discrimination, courts “will generally look for attorneys to prove up discriminatory intent, discriminatory impact, in some cases, retaliation. There is no Supreme Court doctrine that speaks to systemic racism,” and those “aren’t words that I’ve ever used in a court of law to make claims based under the constitution or the applicable statutes. “
Sen. Ted Cruz, R-Texas, asked her about her representation of clients in a case involving prisoners at Guantanamo Bay. Jackson said she filed a friend-of-the-court brief, representing 20 former federal judges who wanted to make the point that evidence obtained by torture would not have been accepted by the English courts in the system of common law that is the basis for ours. Cruz pressed further, asking her what led her to take on the case. She replied that she worked in a big firm, and was assigned to represent the firm’s clients, who, in this case, were a group of judges.
When Sen. Tom Cotton, R-Ark., similarly challenged her about the case, she noted that at the time she was assigned to work on it, her brother was deployed to Iraq with the military. And in a follow up written answer, she said that she was “keenly aware” of the threat posed by the 9/11 attack.
In the end, she was confirmed by a vote of 53-to-44, with three Republican senators supporting her — Susan Collins, Lisa Murkowski and the Judiciary Committee ranking Republican, Lindsey Graham.
On the appeals court, she most recently was part of a unanimous panel that upheld a congressional subpoena for White House records related to the Jan. 6 riots. When Trump appealed to the Supreme Court, the justices left the lower court ruling intact.
From Miami to Harvard
Jackson, was born in Washington, D.C., where her parents were school teachers. They soon moved to Miami where her father went to law school and rose to become the school board’s top lawyer, while her mother became a school principal. One of her earliest memories of the law, she has said, was sitting next to her father in the evening while he studied law books and she worked on her coloring books.
In high school Jackson was a national oratory champion, then graduated with honors from Harvard College and Harvard Law School, where she was an editor on the law review. She clerked for three federal judges, including Justice Breyer, the man she will replace.
Jackson met her husband, Patrick Jackson, when the two were at Harvard College. He was, she says, her first “serious boyfriend” and has remained that ever since. They have two daughters.
At first blush, they look like an improbable couple.
As she put it in a charming — and candid — speech at the University of Georgia law school in March 2017, “Patrick is a quintessential ‘Boston Brahmin’ — his family can be traced back to England before the Mayflower. … He and his twin brother are, in fact, the sixth generation in their family to graduate from Harvard College. By contrast, I am only the second generation in my family to go to any college, and I am fairly certain that if you traced my family lineage back past my grandparents — who were raised in Georgia, by the way — you would find that my ancestors were slaves on both sides.”
Federal Judge Patti Saris, who hired Jackson as a law clerk straight out of law school, recalls her husband, who now looks full-on prep, as less so back then. At the time, he was a surgical resident at Massachusetts General Hospital, but he was so fascinated by his wife’s work he would often go to the courtroom after a long night on call to watch what was going on. As Saris remembers, the young doctor had often been up for 24-plus hours and looked incredibly scruffy, sitting in the back of the courtroom. Finally, one day, the judge’s courtroom marshal came up to her and whispered, “Judge, would you like me to remove the homeless man in the back row?”
The doctor, a star in the surgical world today, is the first to toot his wife’s horn.
Judge Brown said in that Georgia speech that being a federal judge was always her “dream job.” But after Obama nominated her in 2012, actually getting that job depended entirely on events beyond her control, namely Obama’s reelection.
“And when you add to that,” she said, “the fact that I am related by marriage to … Paul Ryan [then the House speaker], who was at that point running for vice president against President Obama, you can get the sense of what that period was like for me.”
As difficult as that confirmation may have seemed at the time, it may in hindsight be something of a picnic compared to what she is likely to face her as a nominee to the U.S. Supreme Court.