President Biden has nominated Judge Ketanji Brown Jackson to the Supreme Court. She would replace Justice Stephen Breyer, who is retiring at the end of the current term, 28 years after being appointed by President Clinton. A hard-core progressive, Judge Jackson is not the best pick Biden could have made. And that is not solely from the point of view of conservatives, who would prefer a bench full of constitutionalists — textualists who will apply the law as written — but who obviously knew that Biden, who has governed from the left, would never nominate such a jurist.
She is also not the best pick for progressives. With a conservative majority on the Court, a disposition that will not change by swapping out Breyer with a like-minded lefty, progressives would have been better served by a jurist in the mold of Justice Elena Kagan — a skilled progressive strategist, whose collegial manner has paved a loose alliance with the Court’s tractable conservatives, Chief Justice John Roberts and Justice Brett Kavanaugh. That helps progressives dodge some cases they should lose, narrow some losses, and steal the occasional win. Jackson is more in the fiery radical mold of Justice Sonia Sotomayor; the Left may swoon, but a justice who provokes rather than beguiles the Court’s center is not going to get progressives the five votes they need to prevail in big cases.
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