Bench Memos

Law & the Courts

D.C. Circuit Nominee Ketanji Brown Jackson

This morning President Biden named ten individuals he intends to nominate to Article III judgeships (along with one to a D.C. municipal seat). As expected, Biden has selected federal district judge Ketanji Brown Jackson to fill one of the two existing vacancies on the D.C. Circuit. I’ll offer just a few thoughts for now on Jackson’s selection.

1. Jackson, 50, has a strong background, including eight years as a district judge, service on the U.S. Sentencing Commission, a clerkship for Justice Stephen Breyer, and double degrees from Harvard.

Yet, as I first noted five years ago when she was being talked about as a possible candidate to fill the Scalia vacancy, Jackson is not highly regarded as a judge. Inquiries I have made recently of folks knowledgeable about her work confirm that she continues to have a middling reputation. This criticism, I’ll emphasize, is on grounds of quality, not ideology. Indeed, she is not regarded as ranking high among the ten or so district judges that President Obama appointed to the federal district bench in D.C. (If any informed reader has a different take on Jackson’s quality or reputation, I’d be eager to hear it.)

For what it’s worth, I don’t mean to present this as an argument against Jackson’s confirmation. Indeed, conservatives might be happy that Biden didn’t select someone more formidable.

2. Jackson has a striking record of reversals by the D.C. Circuit—including by liberal judges—in her high-profile rulings:

a. In 2019, Jackson issued a 122-page opinion in support of her preliminary injunction (in Make the Road New York v. McAleenan) barring the Department of Homeland Security from enforcing its decision expanding the reach of its expedited-removal process to the statutory limit. Jackson ruled (among other things) that plaintiffs had sufficiently established that her court had jurisdiction over the challenge to the decision; that Congress “did not intend to commit implementation of the expedited removal process it authorized entirely to agency discretion”; that plaintiffs had procedural claims under the Administrative Procedure Act; and that the DHS decision was arbitrary and capricious.

The D.C. Circuit reversed Judge Jackson. All three judges on the panel agreed that she got things very wrong. They differed only on which error required vacating her injunction.

In her majority opinion, Judge Patricia Millett, joined by Judge Harry Edwards—both are liberals appointed by Democratic presidents—held that Congress did indeed commit to DHS’s “sole and unreviewable discretion”—that’s the statutory language—the judgment whether to expand expedited removal to the statutory limit. The DHS decision was therefore not subject to review under the APA, and Jackson’s preliminary injunction was improper.

In a separate opinion, Judge Neomi Rao determined that Jackson made an earlier threshold error in exercising any jurisdiction over plaintiffs’ challenge. (Rao’s opinion is styled a dissent, rather than a concurrence in the judgment, because she would require that the district court dismiss the case for lack of jurisdiction.)

b. In 2018, in what the Washington Post hailed as a victory for federal-employee unions, Jackson wrote a 119-page opinion enjoining executive-branch officials from implementing provisions of three of President Trump’s executive orders that (in the Post’s summary) “aimed at making it easier to fire employees and weaken their representation.”

But in a unanimous ruling by an ideologically diverse panel (in American Federation of Government Employees v. Trump), the D.C. Circuit held that the district court lacked jurisdiction to decide the case, as a federal statute vests adjudication of federal labor disputes in the Federal Labor Relations Authority, subject to direct review only in the D.C. Circuit. Judge Thomas Griffith wrote the panel opinion, which was joined most notably by Obama appointee Sri Srinivasan as well as by Bush 41 appointee Raymond Randolph.

c. In a 118-page ruling in 2019, Brown ruled that the House Judiciary Committee could sue in federal court to enforce its subpoena to compel former White House Counsel Don McGahn to testify. After a divided D.C. Circuit panel ruled that the constitutional separation of powers forbade federal courts from enforcing the subpoena, the en banc D.C. Circuit rejected the panel’s conclusion. But the panel—again divided, with the same two appointees of Republican presidents in the majority—then ruled that the House lacked statutory (or equitable) authority to enforce its subpoena.

3. When it issued its (very long) “shortlist” of “diverse, progressive” Supreme Court candidates in 2019, Demand Justice conspicuously omitted Jackson. Given that Jackson had been prominently talked about as a candidate for the Scalia vacancy in 2016, it is difficult to believe that this omission was inadvertent. But Demand Justice added Jackson to the expanded list it issued last September, and it has been aggressively touting her as its apparent favorite for the next Supreme Court vacancy.

The only plausible explanation I can come up with for why Demand Justice did not have Jackson on its initial list is that it was alarmed by her service as an advisory school board member for the Montrose Christian School in Rockville, Maryland, before she became a judge. The school is now defunct. But as I documented five years ago, the school’s website (now also defunct; Wayback Machine link from June 21, 2011) proclaimed that the Montrose Christian School provides “Christ-centered education for the glory of the Savior and the good of society.” In addition to a statement of the truths that “[w]e uncompromisingly hold,” the school directed the reader to the “fuller understanding of what we believe” on the Montrose Baptist Church’s website. That fuller statement of beliefs (Wayback Machine link from Feb. 18, 2010) included these forthright propositions (emphasis added):

Man is the special creation of God, made in His own image. He created them male and female as the crowning work of His creation. The gift of gender is thus part of the goodness of God’s creation . . . .

All Christians are under obligation to seek to make the will of Christ supreme in our own lives and in human society. . . . In the spirit of Christ, Christians should oppose racism, every form of greed, selfishness, and vice, and all forms of sexual immorality, including adultery, homosexuality, and pornography. We should work to provide for the orphaned, the needy, the abused, the aged, the helpless, and the sick. We should speak on behalf of the unborn and contend for the sanctity of all human life from conception to natural death. Every Christian should seek to bring industry, government, and society as a whole under the sway of the principles of righteousness, truth, and brotherly love.…

Marriage is the uniting of one man and one woman in covenant commitment for a lifetime. It is God’s unique gift to reveal the union between Christ and His church and to provide for the man and the woman in marriage the framework for intimate companionship, the channel of sexual expression according to biblical standards, and the means for procreation of the human race.

The husband and wife are of equal worth before God, since both are created in God’s image. The marriage relationship models the way God relates to His people. A husband is to love his wife as Christ loved the church. He has the God-given responsibility to provide for, to protect, and to lead his family. A wife is to submit herself graciously to the servant leadership of her husband even as the church willingly submits to the headship of Christ. She, being in the image of God as is her husband and thus equal to him, has the God-given responsibility to respect her husband and to serve as his helper in managing the household and nurturing the next generation.

Children, from the moment of conception, are a blessing and heritage from the Lord. 

It would seem that Jackson or her allies have persuaded Demand Justice that she never shared the beliefs of the Montrose Christian School.

[I added in the Wayback Machine links around 90 minutes after initial posting.]

Recommended

The Latest