By Terrance Turner
April 7, 2022 (first filed March 22, 2022)
The United States Senate has voted to confirm Judge Ketanji Brown Jackson to the Supreme Court. By a vote of 53-47, the Senate confirmed Jackson to be Associate Justice of the Supreme Court of the United States. Judge Jackson is the first Black woman ever to serve on the United States Supreme Court.
Three Republicans — Senators Susan Collins, Mitt Romney, and Lisa Murkowski — joined all 50 Democrats in voting to confirm Jackson. Vice President Kamala Harris (the first Black woman ever to serve in that role) presided over the vote and announced the final tally. The Senate chamber burst into applause when the news was announced.
On March 22, Jackson answered questions from the Senate Judiciary Committee in her confirmation hearing. Judge Jackson delivered her opening statement the day before. She began with notes of gratitude, thanking God, her family, the committee members whom she met with and the president who nominated her:
“Chairman [Dick] Durbin, ranking member [Chuck] Grassley, and distinguished members of the Judiciary Committee: Thank you for convening this hearing and for considering my nomination as Associate Justice of the Supreme Court of the United States. I am humbled and honored to be here, and I am truly grateful for the generous introductions that my former judicial colleague, Judge Tom Griffith, and my close friend, professor Lisa Fairfax, have so graciously provided.
I am also very thankful for the confidence that President [Joe] Biden has placed in me and for the kindness that he and the First Lady, and the Vice President and Second Gentleman, have extended to me and my family,” Jackson said. “Today will be the fourth time that I have had the honor of appearing before this committee to be considered for confirmation. Over the past three weeks, I have also had the honor of meeting each member of this committee separately, and I have met with 45 senators in total. Your careful attention to my nomination demonstrates your dedication to the crucial role that the Senate plays in this constitutional process. And I thank you.
And while I am on the subject of gratitude, I must also pause to reaffirm my thanks to God, for it is faith that sustains me at this moment. Even prior to today, I can honestly say that my life had been blessed beyond measure,” Jackson said. “The first of my many blessings is the fact that I was born in this great nation, a little over 50 years ago in September of 1970. Congress had enacted two Civil Rights Acts in the decade before, and like so many who had experienced lawful racial segregation, my parents, Johnny and Ellery Brown, left their hometown of Miami, Florida, and came to Washington, D.C. to experience new freedom.
When I was born here in Washington, my parents were public school teachers, and to express both pride in their heritage and hope for the future, they gave me an African name: “Ketanji Onyika,” which they were told means “lovely one.” My parents taught me that, unlike the many barriers that they had had to face growing up, my path was clearer, such that if I worked hard and believed in myself, in America I could do anything or be anything I wanted to be. Like so many families in this country, they worked long hours and sacrificed to provide their children every opportunity to reach their God-given potential. My parents have been married for 54 years, and they are here with me today. I cannot possibly thank them enough for everything they’ve done for me. I love you, Mom and Dad.
My father, in particular, bears responsibility for my interest in the law. When I was four, we moved back to Miami so that he could be a full-time law student, and we lived on the campus of the University of Miami law school, and during those years, my mother pulled double duty, working as the sole breadwinner of our family, while also guiding and inspiring 4-year-old me. My very earliest memories are of watching my father study: he had his stack of law books on the table, while I sat across from him with my stack of coloring books.
My parents also instilled in me — and in my younger brother Ketajh — the importance of public service. After graduating from Howard University, Ketajh started out as a police officer, following two of our uncles. In the wake of the September 11th attacks, he volunteered for the Army and became an infantry officer, serving two tours of duty in the Middle East. Ketajh is here today, providing his love and support as always.
And speaking of unconditional love, I would like to introduce my husband of 25 years, Dr. Patrick Jackson. I have no doubt that without him by my side from the very beginning of this incredible professional journey, none of this would have been possible. We met in college more than three decades ago, and since then, he has been the best husband, father, and friend I could ever imagine. Patrick, I love you.”
“I am saving a special moment in this introduction for my daughters, Talia and Leila. Girls, I know it has not been easy as I have tried to navigate the challenges of juggling my career and motherhood. And I fully admit that I did not always get the balance right. But I hope that you have seen that with hard work, determination and love, it can be done. I am so looking forward to seeing what each of you chooses to do with your amazing lives in this incredible country. I love you so much.
There are so many others who are not here today, but who I need to acknowledge. I have a large extended family, on both sides; they are watching from Florida, North Carolina, New Jersey, Connecticut, New York, Massachusetts, Colorado, and beyond. I also have incredible friends — three of my college roommates came here today to support me — and I have so many other boosters, from Miami Palmetto Senior High School, Harvard undergrad, Harvard Law School, and all throughout my professional and personal life.
I have also had extraordinary mentors, like my high school debate coach, Fran Berger, may she rest in peace: She invested fully in me, including taking me to Harvard — the first I’d ever really thought of it — to enter a speech competition. Mrs. Berger believed in me, and, in turn, I believed in myself.
In the category of great mentors, it is also my good fortune to have the chance to clerk for three brilliant jurists who became my professional role models: U.S. District Judge Patti Saris; U.S. Court of Appeals Judge Bruce Selya; and Supreme Court Justice Stephen Breyer.
Justice Breyer not only gave me the greatest job that any young lawyer could ever hope to have, but he also exemplifies what it means to be a Supreme Court justice of the highest level of skill and integrity, civility and grace. It is extremely humbling to be considered for Justice Breyer’s seat, and I know that I could never fill his shoes. But if confirmed, I would hope to carry on his spirit.
On the day of his Supreme Court nomination, Justice Breyer said: “What is Law supposed to do, seen as a whole? It is supposed to allow all people — all people — to live together in a society, where they have so many different views, so many different needs, to live together in a way that is more harmonious, that is better, so that they can work productively together.”
Members of this committee: If I am confirmed, I commit to you that I will work productively to support and defend the Constitution and the grand experiment of American democracy that has endured over these past 246 years.
I have been a judge for nearly a decade now, and I take that responsibility and my duty to be independent very seriously. I decide cases from a neutral posture. I evaluate the facts, and I interpret and apply the law to the facts of the case before me, without fear or favor, consistent with my judicial oath.”
According to the New York Times, Jackson spent more than seven years as a student at Harvard University and then at Harvard Law School. After graduation, she held three clerkships with federal judges, including in 1999 as a clerk to Justice Breyer, who she is now under consideration to succeed more than 20 years later.
From 2005-2007 she also worked as a federal public defender, a role in which she helped Khi Ali Gul, an Afghan detainee held at Guantánamo Bay, petition for his release. If confirmed, Judge Jackson would be the modern court’s first justice with experience as a public defender.
Judge Ketanji Brown Jackson has spent much of her career in Washington, serving as a judge in the U.S. District Court for the District of Columbia Circuit from 2013 to 2021, and currently the Court of Appeals for the District of Columbia Circuit. She replaced Merrick B. Garland, who joined the Justice Department as Attorney General, on the D.C. Court of Appeals last year, and was confirmed by a vote of 53-44.
Today, Judge Jackson answered tough questions about her judicial decisions and her views on a wide range of topics, from race and policing to marriage and abortion. The Q&A proved contentious, as some Republicans grilled Jackson on her record of sentences — while others merely antagonized her to generate more camera time.
According to ABC News, “In his questioning, Sen. John Cornyn [R-Texas] asked Judge Jackson about same-sex marriage and asserted that the Supreme Court’s decision in Obergefell v. Hodges, which said same-sex marriage is a fundamental right, conflicts with the beliefs of some religions.” Cornyn asserted that same-sex marriage is “not even in the Constitution,” although Justice Anthony Kennedy specifically cited the Constitution’s 14th Amendment in the landmark Obergefell decision.
“When the Supreme Court decides that something that is not even in the Constitution is a fundamental right and no state can pass any law that conflicts with the Supreme Court’s edict, particularly in an area where people have sincerely held religious beliefs, doesn’t that necessarily create a conflict between what people may believe as a matter of their religious doctrine or faith and what the federal government says is the law of the land?” Cornyn asked.
“That is the nature of a right,” Jackson replied. “That when there is a right it means that there are limitations on regulation, even if people are regulating pursuant to their sincerely held religious beliefs.”
Pressed further on whether that is an act of judicial policymaking, Jackson said the Supreme Court considered that to be an “application of the substantive due process clause of the Fourteenth Amendment,” which ensures equal protection under the law. “The rights that the Supreme Court has recognized as substantive due process rights are established in its case law,” she said.
Raising the issue of gender balance in the judiciary (and the fact that, if confirmed, there would be four women on the Supreme Court), Sen. Dianne Feinstein, (D-Calif.) gave Judge Jackson an opportunity to speak to what it would mean to her personally to see more women represented on the nation’s highest court in its history.
“I think it’s extremely meaningful,” Jackson replied. “One of the things that having diverse members of the court does is it provides for the opportunity for role models.”
“Since I was nominated to this position, I have received so many notes and letters and photos from little girls around the country who tell me that they are so excited for this opportunity and that they have thought about the law in new ways because I am a woman — because I am a Black woman — all of those things people have said have been really meaningful to them,” Jackson added.
“And we want, I think, as a country, for everyone to believe they can do things like sit on the Supreme Court. So, having meaningful numbers of women and people of color, I think, matters,” she said. “I also think that it supports public confidence in the judiciary when you have different people because we have such a diverse society.”
Sen. Feinstein also asked about Roe vs. Wade, the landmark 1973 case that legalized abortion for women in their first trimester. Under questioning from Sen. Dianne Feinstein (D-Calif.), Jackson was asked if she agreed with statements that Justices Brett Kavanaugh and Amy Coney Barrett made about abortion law precedent during their confirmation hearings. Kavanaugh called Roe “settled law” during his confirmation, and Barrett said she would abide by the principle of “stare decisis” — the principle of generally deferring to past decisions or precedents when making a ruling.
“I do agree with both Justice Kavanaugh and Justice Barrett on this issue,” Jackson said Tuesday after Feinstein read aloud what the two justices said at their own confirmation hearings in 2018 and 2020, respectively. “Roe and Casey are the settled law of the Supreme Court concerning the right to terminate a woman’s pregnancy. They have established a framework that the court has reaffirmed.”
Sen. Mike Lee (R-Utah) asked Jackson about the Commerce Clause, which grants Congress the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Lee asked about the clause’s constitutionality. “At the time of the founding, the Founding Fathers didn’t foresee — and almost certainly could not have foreseen — the invention of radios, televisions, airplanes, the internet, telephone networks, and yet all of those things are governed by federal law,” he said. “Why is this constitutional?”
“Well, Senator, the Commerce Clause was initially interpreted by the Supreme Court to be very broad, to allow for federal regulations of interstate commerce, and the growth of the economy in this country. But over time, the Supreme court has made clear that the commerce clause limits the federal government, that there is limited authority under the commerce clause,” Jackson replied. She added that the clause only allowed to regulate channels and “instrumentalities” of interstate commerce. Also: in the Lopez case and in the ACA case, the Court made clear that inactivity is also not covered or authorized under the commerce clause.
Sen. Amy Klobuchar (D-Minnesota) began with a lengthy meditation on the lack of diversity in both federal judgeships and in the Senate — out of the 115 justices appointed to the Supreme Court, 110 have been men. Jackson is the first Black woman nominated to her position on the Supreme Court. Of the nearly 2000 people that have served on the Senate, “only 58 have been women,” Klobuchar noted. She also pointed out “a decline of the public’s confidence in our Court,” saying that people polled see the Court as “over-politicized or out-of-touch.”
“How do you think we can work to maintain the public’s confidence in the Court?” Klobuchar asked.
“Public confidence in the court is crucial. As has been said here earlier, the Court doesn’t have anything else — that that is the key to our legitimacy in our democratic system,” Jackson replied. “I am honored to accept the president’s nomination, in part because I know that it means so much to so many people; it means a lot to me,” she said. “I am here standing on the shoulders of generations of Americans who never had anything close to this kind of opportunity,” Jackson declared, mentioning her grandparents who had only a grade-school education, and parents “This nomination,” she said, “is significant to a lot of people, and I hope that it will bring confidence — that it will inspire people to understand that our courts are like them, that our judges are like them, doing the work, being a part of our government. I think it’s very important.”
Sen. Klobuchar pointed out that Jackson clerked for Stephen Breyer and quoted Breyer as saying that the Court can help improve public perception by interpreting the constitution in a ”workable” way. She inquired whether there are things in the Constitution that can be interpreted “in a way that works for the people of today”. Klobuchar asked Jackson: Do you think a judge can acknowledge history and be both pragmatic and objective?
“I do, and I think that some of the justices have demonstrated that. Some of their decisions have had to deal with modern technology — technologies that did not exist at the time of the founding,” Jackson said. “So, for example, the Riley case, the Carpenter case, these were Fourth Amendment decisions: the Court was asked to determine whether or not it violated the Fourth Amendment for the police to search someone’s cell phone without a warrant, or for the police to use a GPS location data to determine where someone had been without a warrant, and obviously, those technologies did not exist.
But what the Court did was, it looked back at the time of the founding and determined what the reasonable expectations for privacy were, related to the term “unreasonable searches and seizures,” which appears in the constitutions. and having assessed what that meant back then, they could use those principles to determine whether or not a cell phone is like someone’s ho0me, these days, with all of the information and all of the things that are stored there, and the court determined that it was a violation of the fourth amendment, that the police officers needed a warrant.”
Sen. Ted Cruz (R-Texas), riding his usual hobby horses of railing against critical race theory and antiracist teachings, questioned Jackson’s reference to Nikole Hannah-Jones landmark work “The 1619 Project” which won the Pulitzer Prize and was published in the New York Times, in a speech at the University of Michigan Law School for Martin Luther King Jr. Day in 2020.
“It is not something that I’ve studied. It doesn’t come up in my work,” Jackson said. “I was mentioning it because it was, at least at that time, something that was talked about and well-known to the students that I was speaking to at the law school.” Cruz then launched into an attack on critical race theory and asked Jackson to explain what it means — allowing her the chance to say critical race theory does not have an impact on her work.
“Senator, my understanding is that critical race theory is — it is an academic theory that is about the ways in which race interacts with various institutions,” she said. “It doesn’t come up in my work as a judge. It’s never something that I’ve studied or relied on and it wouldn’t be something that I would rely on if I was on the Supreme Court.”
Cruz continued his link of attack, noting that Jackson served on the board of Georgetown Law school (which he claimed was “overflowing” with critical race theory), taking issue with reading lists at the university and echoing the GOP talking point that the theory is meant to make white children feel ashamed or culpable for racism. Jackson responded that the books do not come up in her work, that the board does not determine curriculum, and that she believed Cruz to be referencing public schools.
“Senator, I do not believe that any child should be made to feel as though they are racist or though they are not valued or though they are less than, that they are victims, that they are oppressors,” Jackson said. “I don’t believe in any of that, but what I will say is that when you asked me whether or not this was taught in schools — critical race theory — my understanding is that critical race theory as an academic theory is taught in law schools and to the extent that you were asking the question, I understood you to be addressing public schools,” she continued. “Georgetown Day School — just like the religious school that Justice Barrett was on the board of — is a private school,” she noted. (Justice Amy Coney Barrett served for three years on the board of Trinity Schools Inc.).
Sen. Tom Cotton, R-Ark., who is considered a presidential hopeful, questioned Jackson on crime, continuing a GOP focus on crime and punishment that some see being more about political calculations than the nominee herself.
He first pushed her to answer if she believes the U.S. needs more or fewer police, calling it a “simple either/or question.” She responded, “Determination whether there should be more police is a policy decision by another branch of government. It is not something that judges have control over and I will stay in my lane in terms of the kinds of things that are properly in judiciary branch.”
Cotton, appearing frustrated, said to the judge, “OK, you don’t want to address it, we’ll move on.” Cotton asked more specific questions on crime, including if the average murder sentence — which he said is 17 years — is too long or too short. Jackson responded, “Senator, these are policy questions … They’re not the kind of things I can opine about.”
When Cotton asked her about rape sentences, Jackson responded, “Rape is not a crime in the federal system that I’m familiar with working with.”
Cotton asked: “In 2020 alone well over 1 million — 1 million — violent crimes went unsolved in America. Do you think we imprison too many violent criminals or not enough?” Jackson responded, “Senator, it’s important for our rule of law to ensure that people are held accountable who are breaking the law in the ways that you mention and otherwise.”
UPDATE (March 23): A new Gallup poll indicates historic support for Jackson among the American people. Gallup reported: ” Initial public support for judge Ketanji Brown Jackson’s confirmation to the Supreme Court ties as the highest Gallup has measured for any recent nominee. Fifty-eight percent of Americans say the Senate should vote in favor of Jackson serving on the Supreme Court. Only current Chief Justice John Roberts, at 59% in 2005, had a level of support on par with that for Jackson. Most other nominees had support in the low 50% range, with five below that mark.
“Jackson’s support is thus 10 percentage points above the historical norm, while the percentage without an opinion is 11 points lower,” the Gallup article said. The results are based on a March 1-18 Gallup poll. President Joe Biden nominated Jackson to the Supreme Court on February 25 to fill the seat held by retiring justice Stephen Breyer. The Senate Judiciary Committee is holding hearings on Jackson’s nomination this week.
After a another round of difficult questioning, Rep. Cory Booker, D-NJ, provided a reprieve for Judge Jackson — and a stirring pep talk. ”You got here how every black woman in America who has gotten anywhere has done, by being — like Ginger Rogers said; ‘I did everything Fred Astaire did, but backwards and in heels.’ And I want to tell you, when I look at you, this is when I get emotional…I’m sorry; it’s hard for me to look at you and not see my mom, my cousin — who had to come here and sit behind you. She had to have your back — I see my ancestors and yours. Nobody is going to steal that joy: [of] the woman in the street, or the calls that I’m getting, or the texts — no one’s going to steal that joy.”
Booker continued: “Don’t worry, my sister. Don’t worry. God has got you. And how do I know that? Because you’re here. And I know what it’s taken for you to sit in that seat today. You’re my star. You are my harbinger of hope,’ Booker told Jackson, declaring that when she takes her seat on the Supreme Court, “the greatest country in the world — the United States of America — will be better because of you.” Jackson was moved to tears.
Watch the video below:
UPDATE (April 4, 2022): Today, the Senate Judiciary Committee deadlocked on Jackson’s nomination. All 11 Democrats on the committee voted for Jackson; all 11 Republicans voted against her. But all was not lost. According to CNN, “After the Senate Judiciary Committee voted 11-11, Senate Majority Leader Chuck Schumer called for a vote to break the deadlock and send her nomination to the floor. Every Democrat and three Republican senators — Susan Collins of Maine, Mitt Romney of Utah and Lisa Murkowski of Alaska — voted in support of Jackson.” Thus the vote to discharge Jackson’s nomination out of committee — and move it to the Senate for a vote — passed, 53-47.
What’s more, it appears that Jackson has secured more Republican support for her confirmation. Last week, Sen. Susan Collins indicated that she would vote to confirm Jackson on the Supreme Court. Today, two more Republicans joined her. Sen. Romney and Sen. Murkowski both said today that they would vote in favor of Jackson’s confirmation, according to CBS News.
“After reviewing Judge Jackson’s record and testimony, I have concluded that she is a well-qualified jurist and a person of honor,” Romney said. “While I do not expect to agree with every decision she may make on the court, I believe that she more than meets the standard of excellence and integrity.”
UPDATE (April 5): Sen. Tom Cotton (R-Ark.) today launched a shameful attack on Judge Kentanji Brown Jackson, invoking Nazis in the process. Judge Jackson appears on her way to bipartisan confirmation, with three Republicans joining Democrats in voicing their support for her. But that didn’t stop Cotton from smearing Jackson in remarks today.
“You know, the last Judge Jackson left the Supreme Court to go to Nuremberg and prosecute the Nazis,” he said, referring to Justice Robert Jackson (who served as chief prosecutor in the 1945 Nuremberg trials of Nazi war criminals). “This Judge Jackson may have gone there to defend them.”
This baseless attack — completely unprovoked — comes after Cotton introduced legislation to block Nikole Hannah-Jones’ “1619 Project” from being taught in schools. (The project “aims to reframe the country’s history by placing the consequences of slavery and the contributions of black Americans at the very center of our national narrative.”) While Cotton called it “left–wing propaganda. It’s revisionist history at its worst,” he was nowhere near as condemnatory about slavery itself: “We have to study the history of slavery and its role and impact on the development of our country,” he said, “because otherwise we can’t understand our country. As the Founding Fathers said, it was the necessary evil upon which the union was built.”
Despite the vitriol aimed at her, Judge Jackson prevailed, becoming the first Black woman to serve on the Supreme Court.