Judge Ketanji Brown Jackson—President Biden’s Stellar Pick for the D.C. Circuit Court of Appeals April 18, 2021
At least since Richard Nixon’s 1968 run for the Presidency, Republicans, unlike many progressive Democrats, have been obsessed with federal judicial nominations. They have made sure that all their presidential candidates have taken a “pledge” to appoint hard right “law-and-order” conservatives, jurists who favor big business, and social conservatives. These jurists must be appointed not only to the United States Supreme Court (SCOTUS) but also the lower Federal Circuit Court of Appeals and U.S. District Courts. As a result, after Trump’s three SCOTUS appointments, we presently have a 6-3 hard right Supreme Court. Most federal criminal, business, and social disputes are never heard by the Supreme Court, which takes only 60-80 cases per year for decision. Most cases involving federal matters are initially decided in the Federal District Courts. If appealed, the 13 Federal Circuit Appeals Courts usually constitute the courts of last resort. Federal District Courts, or trial courts, heard 400,000 cases in 2019 and Federal Circuit Courts heard close to 50,000 appeals (vox.com, Milhiser, I., 1/20/21). Presently, there are many right-wing GOP District Court Judges, and with Trump’s final set of appointments, there is now a conservative GOP majority in the 13 U.S. Circuit Appellate Courts.
Former Democratic President Barack Obama, although an attorney, was rightfully accused of acting too slowly and not pushing hard for the judicial nominees he put forward. Too many of his nominations were delayed or completely blocked by Senate GOPers, especially Mitch McConnell (R-KY) when he was Senate Majority Leader (See vox.com, Milhiser, 1/20/21). Obama did not use the issue of federal judges as a party rallying cry for Democrats (See Washington Post, Marimow & Viser, 3/29/21). As VP, Joe Biden, also an attorney, watched Obama’s failure to emphasize and push judicial nominations for District and Circuit Court vacancies. President Biden will not to allow such judicial delay “on his watch.”
On 3/30/2021, even before his first 100 days have passed, Biden nominated his first slate of 11 individuals to serve as Federal Circuit and District Court Judges (whitehouse.gov/briefing-room, 3/30/21). At this point in his term, Obama had made only one judicial nomination (Wash. Post, Marimow & Viser, 3/29/21). Even after his nomination of these 11 judges, Biden will still have 9 other vacancies to fill on the Circuit Courts and more than 80 current and future District Court openings (Wash Post, 3/29/21). Biden will have a chance to flip the Federal Circuit Appeals Courts from a GOP majority to a Democratic one and put in more Democratic District trial Judges. He is doing everything he can to speed judicial confirmations. He will not ask the American Bar Association (ABA) to review candidates in advance of formal nominations, which delays the process. The Senate Judiciary Committee, now with a Democratic Majority, will hold hearings on Biden’s nominations in late April. Senate Judiciary Chairman and Majority Whip Richard Durbin (D-IL), said he will move “expeditiously” on these nominations. Durbin, an attorney, stated, “These highly qualified and diverse nominees are clearly worthy to be considered for these important appointments (Wash Post, 3/29/21, CQ 117th Cong. At Your Fingertips).”
As Sen. Durbin noted, Biden’s first judicial nominees, in addition to their high qualifications, reflect the full diversity of the American people. This group consists of three African American women chosen for Circuit Court vacancies and, if confirmed, the first Muslim American federal judge in U.S. history. He will become a District Court judge in New Jersey. This group includes the first AAPI woman (Asian American Pacific Islander) nominee, who if confirmed, would be the first of her gender and ethnicity ever to serve on the U.S. District Court for the District of D.C. This group of 11 federal judicial nominees has top notch jurists, prosecutors, and people with distinguished private practice records and military backgrounds. They have clerked for many judges, including Supreme Ct. Justices. President Biden, a former public defender, who represented indigent criminal clients, has nominated former public defenders to these posts (Wash Post, 3/29/21, whitehouse.gov/briefing-room, 3/30/21). The most prominent name in this first group of Biden nominees is African American Ketanji Brown Jackson. Jackson, currently a United States District Court Judge for the District of Columbia, will take the place of D.C. Appeals Court Justice Merrick Garland. Garland resigned when he was confirmed as Biden’s Attorney General. Garland had been previously nominated to fill the late Antonin Scalia’s Supreme Court seat, but was blocked in 2016 by Senate GOPers under the “leadership” of then Senate Majority Leader Mitch McConnell. At that time, Jackson had been on Obama’s shortlist to fill the Scalia vacancy (npr.org, Totenberg, N., 3/30/21). During his presidential campaign, Biden stated he would fill his next Supreme Court vacancy with a black woman. Meet D.C. Court of Appeals nominee Ketanji Brown Jackson.
D.C. born Ketanji Brown Jackson (50) was raised in Miami, FL. Her father was an attorney, her mother a retired school principal. In high school, Jackson was a national oratory champion (judiciary.senate.gov, Brecher, E., 8/07/08, Miami Herald). She received her 1992 undergraduate degree magna cum laude from Harvard and a 1996 law degree from Harvard Law School, cum laude. Jackson was an editor of the Harvard Law Review (judiciary.senate.gov, mofo.com/attorneys, 9/06/08). She began her legal career clerking for MA U.S. District Ct. Judge Patti Saris from 1996-1997 and then for U.S. First Circuit Court of Appeals Judge Bruce Selya from 1997-1998. After practicing with a D.C. law firm from 1998-1999, Jackson clerked for U.S. Supreme Court Justice Stephen Breyer from 1999-2000. After her Breyer clerkship, Jackson went into private practice with Boston and D.C. law firms from 2000-2003. From 2003-2005, Jackson became an Assistant Special Counsel for the U.S. Sentencing Commission, at a time when it sought to reduce the draconian penalties that had been in place for crack cocaine (whitehouse.gov/briefing room, 3/30/21, npr.org, Totenberg, 3/30/21). From 2005-2007, Jackson served as an Assistant Public Defender in Washington D.C. Her boss in that position, A.J. Kramer, a longtime D.C. public defender, stated that Jackson has “a real commitment to equal justice for everybody and believes the criminal justice system ought to have integrity at every level (Wash Post, Marimow & Viser, 3/29/21).” After leaving the D.C. Public Defender’s office, Jackson was of counsel to the large Morrison & Foerster law firm from 2007-2010 in D.C. Her practice at that firm focused on criminal and civil appellate litigation in both state and federal courts, as well as cases in the U.S. Supreme Court. In that practice, she spent most of her time writing briefs. Her former boss Kramer said that Jackson “could turn complex issues into something understandable and readable and tell a story. That’s not the easiest thing to do (Wash Post, 3/29/31, ballotpedia.org).” From 2010-2014, Jackson was Vice Chair/Commissioner of the U.S. Sentencing Commission (ballotpedia.org). On 9/20/2012, Jackson was nominated by President Obama to fill a vacancy on the U.S. District Court for the District of Columbia. The American Bar Association rated her “Unanimously Qualified.” On 3/23/2013, the U.S. Senate confirmed her by voice vote (ballotpedia.org).
In the eight years Judge Jackson has served on the trial bench as a D.C. District Court Judge, she has continued to be known as a gifted writer. She is considered an unflappable jurist and has handled many types of cases. She has issued several rulings against the former Trump administration with mixed results on appeal (Wash Post, Marimow & Viser, 3/29/21). Judge Jackson rejected the Trump administration’s attempt to block a congressional subpoena for testimony for former White House counsel Donald McGahn. In that 2019 case, in a 118-page opinion, she ordered McGahn to comply with a subpoena to testify about former special counsel Robert Mueller’s investigation into Russian election interference. Judge Jackson stated, “Presidents are not kings. However busy or essential a presidential aide might be, and whatever their proximity to sensitive domestic and national-security projects, the President does not have the power to excuse him or her from taking an action that the law requires. Fifty years of say so within the Executive branch does not change that fundamental truth (Wash Post, 3/29/21).” That case was twice appealed to a full D.C. Circuit panel of judges. It is still pending. The Biden administration and House Democrats are working to negotiate a settlement (Wash Post).
In another 2019 case, Judge Jackson issued a nationwide preliminary injunction that blocked Trump from dramatically expanding his power to deport migrants who illegally entered the U.S. by using a fast-track deportation process. On appeal, the D.C. Circuit reversed Jackson. It stated that expedited removal decisions are within the homeland security secretary’s discretion. The D.C. Appeals Ct. agreed with Judge Jackson on other grounds and sent the case back for review (Wash Post,3/29/21). In 2018, Judge Jackson struck down key provisions of Trump administration orders that were aimed at making it easier to fire employees and weaken their labor representation. Jackson wrote, “While the president has the power to issue executive orders related to federal labor relations, no such orders can operate to eviscerate the right to bargain collectively as envisioned…The collective bargaining process is not a cutthroat death match (Wash Post, Marimow & Viser, 3/29/21).” In 2019, a D.C. Circuit panel vacated this ruling, and said the District Court lacked jurisdiction to decide this case (Wash Post, 3/29/21).
Judge Jackson is best known for her sentencing of Edgar Madison Welch, the “Pizzagate” defendant. Welch (29) was the gunman who fired a military-style rifle into the popular D.C. Comet Ping Pong pizzeria in 12/2016 because he was led to believe by false online reports that children had been held there in a child-trafficking abuse ring led by Hillary Clinton (nytimes.com, Haag & Salam, 6/22/17). This assaulting of children conspiracy nonsense figures prominently in the wacko QAnon cult. With tensions running high during Welch’s sentencing hearing, Judge Jackson showed empathy and pragmatism. On 6/22/2017, she sentenced Welch to four years in prison and three years of probation. Welch was ordered by Jackson to pay $5, 744 in restitution for damaging the pizzeria. Judge Jackson stated that it was “sheer luck” that Welch did not injure anyone. She added, “The extent of the recklessness in this case is breathtaking.” Welch’s attorney had requested a sentence of just eighteen months (Wash Post, 3/29/21, nytimes.com).
Judge Jackson’s extensive experience writing briefs in much of her private practice will make her well suited for the cerebral work of the D.C. Appeals Court (Wash Post, 3/29/21). Judge Jackson is now seen by many to be a leading progressive pick by Biden for the SCOTUS bench should Justice Stephen Breyer (82) retire. The DC Court of Appeals is a steppingstone to SCOTUS. Scalia, Ginsburg, Chief Justice Roberts, and Kavanaugh served on that bench before going on SCOTUS (ballotpedia.org).
Judge Jackson has a unique American family history. Her husband Patrick, a surgeon, is a Boston “Brahmin.” His family can be traced back to England before the Mayflower. Judge Jackson’s husband Dr. Patrick Jackson and his twin brother are the sixth generation in their family to graduate from Harvard College. Judge Ketanji Brown Jackson is also related by marriage to former Irish Catholic GOP House Speaker Paul Ryan. Dr. Patrick Jackson is the twin brother of Ryan’s brother-in-law (abcnews.go.com, Phelps, 2/06/16). Judge Jackson is just the second in her family to go to any college. She is fairly certain that if one traced her family lineage, “you would find that my ancestors were slaves on both sides (Totenberg, npr.com, 3/30/21).”
Justice Ketanji Brown Jackson and her fellow ten stellar Biden nominees must be confirmed as soon as possible. They will give the majority of Americans, not just the top 1%, a voice.