Ketanji Brown Jackson, nominated Tuesday to the U.S. Court of Appeals for the District of Columbia, is among the top contenders for a seat on the Supreme Court, if there is a vacancy in the Biden years.
If confirmed to the D.C. appeals court, she would take the place of Merrick Garland, who resigned when he was confirmed as U.S. Attorney General. Jackson has served as a federal district court judge since 2013 and was on President Obama’s Supreme Court shortlist in 2016.
Back then, she was a long shot. Not this time. President Biden has pledged that he will name an African American woman to the Supreme Court if there is a vacancy, and Jackson would be a top contender were it to happen.
Jackson, 50, ticks off just about every box that liberals might want in a nominee, and some that conservatives would want, too. Raised in Miami, she was a national oratory champion in high school, then graduated with honors from Harvard College and Harvard Law School, where she was an editor of the law review.
She clerked for three federal judges, including Supreme Court Justice Stephen Breyer, now 82, who is the most likely member of the high court to step down, though he has given no indication that he plans to do so.
Whereas four members of the current Supreme Court served at one time as prosecutors, Jackson was a public defender, representing indigent defendants. She also practiced in law firms big and small, and served as vice chairman of the U.S. Sentencing Commission at a time when it sought to reduce the draconian penalties that had been in place for crack cocaine.
Jackson’s parents were both public school teachers until her father became a lawyer, and her mother, eventually, a school principal. The judge met her husband, Patrick Jackson, at Harvard College. He was, she says, her first, “serious boyfriend,” and has remained that ever since.
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 Dr. Jackson, 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 that 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?”
In her University of Georgia speech, Judge Jackson talked about her two teenage daughters and the “whiplash” between her two roles — on the one hand being a federal district judge, “which means people generally treat me with respect … and I control what happens in my courtroom.” And, on the other, her maternal role in which “my daughters make it very clear that as far as they are concerned, I know nothing and should not tell them anything; much less, give them any orders — that is if they talk to me at all.”
She also talked about the difficulties of balancing work as a litigator in a large law firm and family responsibilities.
“I think it is not possible to overstate the degree of difficulty that many young women, and especially new mothers, face in the law firm context,” she said in the speech. “The hours are long; the workflow unpredictable; you have little control over your time and schedule; and you start to feel as though the demands of the billable hour are constantly in conflict with the needs of your children and your family responsibilities.”
There are many women who are well-suited to these pressures, she said. “I discovered early on that I was not.”
She did eventually find happiness at a large firm doing appellate work, from there became vice chair of the sentencing commission, and in 2012 Obama nominated her to become a federal district judge.
But, as she has noted, the chances of her actually getting her “dream job” depended entirely on events beyond her control, namely Obama’s reelection.
“And when you add that to the fact that I am related by marriage to [the then] House Speaker Paul Ryan, who was then running for vice president against President Obama, you get the idea of what that period of time was like for me,” she recalled.
In her eight years as a federal district court judge, Jackson has amassed a record in a variety of regulatory cases. But her most prominent decision came when she ordered President Trump’s former White House counsel Don McGahn to appear before the House Judiciary Committee, to testify about possible obstruction of justice by Trump.
McGahn had been a star witness in special prosecutor Robert Mueller’s investigation, and the House committee wanted to question him to determine if there were grounds for impeachment. But Trump ordered McGahn not to testify and the committee went to court to enforce its subpoena.
In a lengthy decision, Jackson rejected Trump’s argument that a president’s close advisers and former advisers like McGahn are absolutely immune to demands that they appear and testify before Congress.
That immunity “simply does not exist,” Jackson 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. Rather, in this land of liberty, it is indisputable that current and former employees of the White House work for the people of the United States.”
The Trump administration appealed and the case is still pending.