After several weeks of mild suspense, President Biden announced that he’s nominating Ketanji Brown Jackson, who currently sits on the D.C. Circuit Court of Appeals, to replace Justice Stephen Breyer on the Supreme Court. Now, the Senate is hurtling toward its fourth Supreme Court confirmation hearing in five years. Jackson, who is the first Black woman ever to be nominated to the court, has support from several progressive groups. If she’s confirmed, she’ll probably move the court’s Democratic-appointed bloc even further to the left – although it’s not clear from the data we have just how liberal she’ll be.
Jackson’s nomination is historic — she’s poised to become the first Black woman and the first former public defender to serve on the nation’s highest court. But unlike with the previous two battles over potential justices, the ideological balance of the court isn’t about to change. Jackson, if confirmed, will replace another justice nominated by a Democrat, which means the court will still be dominated by a six-justice conservative majority.
But that doesn’t mean Jackson’s worldview won’t matter if she ends up on the Supreme Court – after all, she’s likely to serve for decades. Based on her professional background and her previous rulings, she’s likely to be a more liberal justice than Breyer was, and one who will probably be less willing than Breyer to compromise with the court’s conservatives. That could mean the court – like every other political institution these days – is about to become even more polarized.
Predicting how potential justices will rule when they get their Supreme Court robes is a tricky business. According to one prominent metric of Supreme Court ideology, though, Jackson looks pretty moderate. As the chart below shows, her Judicial Common Space (JCS) score would place her toward the middle of the current Supreme Court, slightly to the right of Justice Elena Kagan and well to the right of Justice Sonia Sotomayor. According to those scores, she’s also a middle-of-the-road judge on the court where she’s currently serving.
But there are a lot of reasons to think that the JCS scores underrate Jackson’s liberal tendencies quite a bit. For one thing, a different measure from the Database of Ideology, Money in Politics, and Elections (DIME) puts her to the left of Kagan and even Sotomayor. According to this metric, Jackson is actually one of the most liberal judges on the D.C. Circuit.
These estimates of Jackson’s ideology are so different, in part, because pinning down a lower court judge’s ideological outlook is even more difficult than figuring out how a Supreme Court justice will rule (which is itself no easy task). The JCS scores are based on the idea that the ideology of the politicians who nominate a judge can tell us a lot about how the judge will approach their job, but that means the judge’s own views and rulings aren’t taken into account. And the scores are even less nuanced for judges who serve on courts in Washington, D.C. Usually, JCS scores are based in part on the ideology of a judge’s home-state senators, but since D.C. does not have any senators, those judges’ ideology scores are based entirely on the presidents who nominated them.
The DIME scores, on the other hand, are drawn from the judge’s own political contributions. This has its own limitations, especially for judges. Federal judges aren’t allowed to donate to campaigns after they join the bench (for Jackson, that happened in 2013), which means this metric can be very dated. For instance, when it comes to the Supreme Court, the DIME scores don’t accurately reflect the ideological leanings of Justices Clarence Thomas and Samuel Alito, two conservatives who have been federal judges for decades. But in an era where ideological consistency is an increasingly prized feature in judges, even years-old political contributions could be a pretty good signal for how newer justices will rule.
And there are other clues in Jackson’s record that suggest she’d be likely to join Sotomayor on the court’s left flank, rather than staking out a spot in the middle. In her first opinion for the D.C. Circuit, which came out days after Breyer announced his retirement, Jackson struck down a Trump-era policy that had limited the bargaining power of federal unions. Last year, she was also one of three judges who ruled that former President Donald Trump couldn’t stop presidential documents from being turned over to the House committee investigating the events of Jan. 6. As a district court judge, she ruled that Trump’s former White House counsel, Don McGahn, had to obey a congressional subpoena to testify. “Presidents are not kings,” she wrote. “This means they do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control.”
She’s also seen the impact of harsh sentencing policies firsthand. In addition to working as a federal defender, Jackson also spent several years at the U.S. Sentencing Commission, where she was involved in an Obama-era push to make sentencing guidelines for judges less draconian. And one of Jackson’s family members was caught up in the war on drugs directly. Her uncle was sentenced to life in prison for a nonviolent drug crime under a “three strikes” law. Years later, President Barack Obama commuted his sentence.
Those life experiences are unusual for federal judges, who have often spent their careers as prosecutors or corporate lawyers. There’s evidence that criminal defense experience does have an impact on judges’ decision-making; a study found that defendants assigned to a judge with that kind of experience are, on average, less likely to be incarcerated. And although Jackson has never commented publicly on her uncle’s case, it seems possible that watching a family member go through the criminal justice system may have given her different views about issues like sentencing, which come up not infrequently in Supreme Court cases.
But the background that makes Jackson appealing to liberals could make her confirmation process even more contentious. Granted, she hasn’t been especially controversial in the past. When she was nominated to the district court in 2012, former Republican Rep. Paul Ryan — who’s a relative of Jackson’s by marriage — testified in her favor. And when she was appointed to the D.C. Circuit last year, three Republican senators — Lisa Murkowski, Lindsey Graham and Susan Collins — crossed the aisle to vote for her. Graham, however, has already indicated that he’ll be taking a very different position on Jackson this time, tweeting that “the radical Left has won President Biden over yet again.”
So she’s unlikely to get full-throated support from Republicans this time. The question is how much of a fuss they want to make, considering that no matter how liberal Jackson turns out to be, her confirmation won’t shift the conservative tilt of the court.
Additional analysis by Laura Bronner.
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