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February 17, 2016

New SCOTUS short-list name to excite sentencing fans: Judge Ketanji Brown Jackson

6a00d83451d94869e2017c348c0bb5970b-800wiI was pleased and excited to see this new post by Tom Goldstein at SCOTUSblog titled "Continued thoughts on the next nominee (and impressions of Judge Ketanji Brown Jackson)." I recommend the full lengthy post for anyone following closely the politics and prcticalities of replacing Justice Scalia, and here is an excerpt from the tail end:

[T]he president will be inclined to appoint a highly qualified black woman to the Court who has been recently confirmed.  In a previous post, I said that the most likely candidate is Attorney General Loretta Lynch. I continue to think her credentials are strong.  But it is worth noting that her confirmation vote in the Senate was close (because of Republican votes), so the administration could not make the point that she had been uniformly supported in the past....

There is another potential sticking point — one on which people directly involved in Democratic Supreme Court nominations are torn.  The confirmation process would give Republicans the excuse to demand a wide array of documents that are related — maybe tangentially — to Lynch’s service as attorney general.  These could include documents relating to decisions to initiate investigations and prosecutions. Benghazi is one example among many.  In the view of some, that is a deal-breaker for the nomination.  The administration won’t want to expose itself to those demands.  Others think it could be worked out, as it was with respect to documents from Elena Kagan’s time as Solicitor General....

If not Lynch, who? There does not seem to be any obvious candidate in the federal courts of appeals. But there is a district judge.

Ketanji Brown Jackson is a judge on the U.S. District Court for the District of Columbia.  She was confirmed by without any Republican opposition in the Senate not once, but twice.  She was confirmed to her current position in 2013 by unanimous consent — that is, without any stated opposition.  She was also previously confirmed unanimously to a seat on the U.S. Sentencing Commission (where she became vice chair).

She is a young — but not too young (forty-five) — black woman.  Her credentials are impeccable.  She was a magna cum laude graduate of Harvard College and cum laude graduate of Harvard Law School.  She clerked on the Supreme Court (for Justice Stephen Breyer) and had two other clerkships as well.  As a lawyer before joining the Sentencing Commission, she had various jobs, including as a public defender.

Her family is impressive.  She is married to a surgeon and has two young daughters.  Her father is a retired lawyer and her mother a retired school principal.  Her brother was a police officer (in the unit that was the basis for the television show The Wire) and is now a law student, and she is related by marriage to Congressman (and Speaker of the House) Paul Ryan.

Judge Brown Jackson’s credentials would be even stronger if she were on the court of appeals rather than the district court and if she had been a judge for longer than three years.  One person whom I know who has been deeply and directly involved in prior confirmations is confident the president would not nominate someone from the district court. I disagree because these are special circumstances.  It is easy to see a political dynamic in which candidate Hillary Clinton talks eagerly and often about Judge Brown Jackson in the run-up to the 2016 election, to great effect.

Even if I was not familiar with Judge Brown Jackson, the fact she had been a federal public defender would appeal greatly to me. But I am familiar with Judge Brown Jackson because I had a few lovely opportunities to interact with her professionally when she was a member of the US Sentencing Commission and I had dinner with her and a few others once during a US Sentencing Commission conference.

On the merits, I think Judge Brown Jackson’s status as a district judge should actually be a plus on a Supreme Court that has often (and rightly) been accused of not being attentive to or even seemingly aware of the practical impact of its rulings for trial courts. I was not previously aware of Judge Brown Jackson's connection to House Speaker Paul Ryan, but A bit of research revealed these notable comments from Speaker Ryan at her confirmation hearing to become a US District Judge:

I appreciate the opportunity to share my favorable recommendation for Ketanji Brown Jackson. I know she is clearly qualified. But it bears repeating just how qualified she is....

Now, our politics may differ, but my praise for Ketanji's intellect, for her character, for her integrity, it is unequivocal. She is an amazing person, and I favorably recommend your consideration.

At the same hearing, notably, Senator Charles Grassley (who is now the all-important Chair of the Judiciary Committee) followed up by saying "Ms. Jackson, I thought after Ryan got done speaking about you we could just vote you out right away."  These comments by leading Republicans would seem to go a very long way to enabling Prez Obama to make much of the fact that leading Republicans have already testified strongly about to her "intellect, ... her character, ... her integrity."

Prior related posts on new SCOTUS nominee possibilities:

February 17, 2016 at 09:30 AM | Permalink


I want a Justice who has experience in jury trials. And one who has defended humans in criminal jury trials. Jury trials make the man. And the woman. Eight of those dorks on the Supreme Court are all Harvard and Yale and none of them except one have ever tried a jury trial. None have ever tried a jury case and represented a criminal defendant in that trial. They do not know nuthin bout birthin babies.

Posted by: JackMehoff | Feb 17, 2016 9:37:44 AM

"but not too young (forty-five)"

Really? I'm not thinking Tom Goldstein is the first source I'd go on these issues. Loretta Lynch continues to be to me a silly idea (she isn't really "qualified" in the sense of being a good pick unless you want to put out someone you know has no chance to be confirmed ... and even that, interfering with the work of your A.G. seems a weird thing to do).

Here he wants a DISTRICT court judge to be elevated? Sure, that's a plus -- Sotomayor's service there is helpful. But, seems more realistic to have someone who was elevated there (not that she's a possibility, but like Trump's sister). It's nice Republicans said nice things about a district nominee, but a 45 year old for the Supreme Court is another matter. But, hey, interesting woman & what do I know?

Posted by: Joe | Feb 17, 2016 9:47:53 AM

Joe, do you realize Justice Thomas was 43 when nominated?

Posted by: Doug B. | Feb 17, 2016 11:00:29 AM

Harvard, Harvard, go team go!

(with deep, biting sarcasm.)

Posted by: Daniel | Feb 17, 2016 12:05:49 PM

There is a very big difference between not opposing somebody for a district judgeship and not opposing the same person for a seat on SCOTUS.

Posted by: Difference | Feb 17, 2016 12:46:17 PM

I agree 100%, Difference, but there still seems to me something especially notable about having a SCOTUS nominee for whom the current Speaker of the House is already on record saying she is "an amazing person" whose intellect, character, and integrity merits unequivocal praise. Put another way, there is a very big different between not opposing somebody for a district judgeship and favorably recommending that person with glowing descriptions about her qualifications and integrity.

Posted by: Doug B. | Feb 17, 2016 1:24:27 PM

If you want someone who drank the cool aide of the Sentencing Guidelines and actually believes they are empirically based despite overwhelming evidence to the contrary she is otherwise objectively qualified along with about a thousand others.

Posted by: ProsecotorSteve | Feb 17, 2016 4:59:40 PM

"Joe, do you realize Justice Thomas was 43 when nominated?"

Uh huh. And, Scalia was unanimously confirmed. What does this have to do with today specifically? These days 45 is pretty young.

And, it doesn't hurt much for either party to praise a district court judge. Be different if she could be on the Supreme Court for another forty years.

Posted by: Joe | Feb 17, 2016 5:18:48 PM

Lets face it, at the level of the Supreme Court, its all based on theory.

Purely theory. They listen to arguments then runoff and at a later date vote with 25 page writeup with their reasons. So they maybe wont have the kind if experience with a Jury. Most federal cases dont go to trial except for white collar.

But I agree be nice to have that experience, as well as a non Harvard and maybe a bit older, 55.

Important thing is also this as was just mentioned. Sentenceing guidelines are empiircally based. They are far from that and that is highly important.

As far as Harvard goes, the graduating class may as well parade past panel to groom them for the SC. Maybe Tom Cruise might get nominated, from his "A few good men" efforts with his Harvard mouth and white suit. But he was a practical atty and Demi Moore - Joanne was a research as well as his sidekick. Just for grins.

Posted by: MidWestGuy | Feb 18, 2016 5:06:30 AM

I am an attorney who is blessed to have known the Honorable Judge as a friend and teammate of mine from my Miami-Palmetto High School debate team days. As a mutual friend, Julie Diehl, an incredible individual herself recently wrote, we all thought and recognized "that she was such a brilliant and thoughtful person" even then. We are all so proud of her achievements! Our former coach, Fran Berger, is surely beaming from heaven.

Posted by: Pamela Higer Polani | Feb 18, 2016 7:16:32 AM

Thanks for the personal touch,Pamela. Judge Brown does indeed sound like an amazing person.

Posted by: jiffypop | Feb 18, 2016 9:53:13 AM

"its all based on theory"

Applied by humans whose life experiences affect their judgments.

Posted by: Joe | Feb 18, 2016 10:40:43 AM

Few cases may go to trial, but there are a lot of 2255 motions about pleas, a lot of motions for summary judgment, a lot of motions to enforce arbitration agreements, etc. What the Supreme Court says about the ground rules governing all of these things (including rules about what it takes to present a meritorious claim) has a lot of impact on the work of trial judges and trial court practitioners. Having some concept about what impact a ruling might have on trial work would be a good thing to have in the Supreme Court (as opposed to the typical throwaway line that few claims will actually succeed so giving non-meritorious claims an opening to proceed will have no impact on the justice system).

Posted by: tmm | Feb 18, 2016 1:47:22 PM

Bottom line is that there will be no justice confirmed this year, and maybe not next year if Sanders is elected, or anytime when the GOP is in office. So this discussion is moot.

Posted by: Eric Knight | Feb 19, 2016 12:51:44 PM

I'm not partial to people going directly from the District Court to the Supreme Court. I also think a 45 year old would certainly open the President up for criticism since Clarence Thomas was accused of being unqualified at the same age (President Obama even said, had he been in Congress back then, he would have questioned his qualifications). Sri Srinivasan is also in his 40s, but 48. I think 50 is the magic number, but I could see appointing him to the Supreme Court and moving Judge Brown Jackson to the Circuit Court.

Posted by: Erik M | Feb 19, 2016 4:10:25 PM

She may sound great but is her 3 years on the bench enough for a SCOTUS position? I have looked at her court cases. It seems very thin as compared to the other Judges in her court. I am sorry but I don't believe her education (Harvard or anywhere else) makes up for her basic lack of experience. There was a TV show about a young lawyer being made a Judge. They had the good sense to make it a comedy. Let's leave 'Night Court' a TV comedy and not make it a reality. Lets find someone with practical experience dealing with the Law and the effects these Laws have n real people. Someone from a non Ivy towered think tank University but where Law is taught and practiced. Someone 55-65, served as a Judge (various courts both Federal and State) for 15 to 20 years.

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