When Stephen Breyer announced that he was retiring from the Supreme Court, we immediately knew two things about Joe Biden’s nominee to replace him. Biden would limit his search to an African-American woman, wrongfully excluding many qualified candidates for no reason other than their race and gender. And Biden would pick someone Democrats expect to deliver left-leaning rulings, regardless of what is written in the democratically adopted Constitution and laws of the United States.
Biden has met both criteria by nominating Ketanji Brown Jackson. Jackson, a federal district judge until her elevation to the D.C. Circuit in 2021, has spent most of her professional career in D.C. She checks the appropriate boxes for elite ivory-tower credentials, including clerking for Breyer, attending Harvard College and Harvard Law School, and serving on Harvard’s Board of Overseers. In joining former Harvard Law School dean Elena Kagan on the Court, she would ensure that the administration of Harvard is well-represented on the Court, but she will almost certainly have to recuse herself from the pending challenge to Harvard’s racially discriminatory admissions policies.
Credentials aside, however, Judge Jackson has not distinguished herself with scholarship or the quality of her legal writing, and she has a discouraging record of her decisions being reversed even by fellow liberal judges. Progressives championed her because of her record as a federal public defender, seeing her as an advocate for soft-on-crime approaches to sentencing and the criminal law. Liberals cheered her for rulings against Donald Trump. Nobody has attempted to present her as a faithful steward of the Constitution. Expect to hear a lot from Democrats about race, gender, sympathy, and empathy. It will fall to Republicans to talk about law and the Constitution.