- The Washington Times - Thursday, April 7, 2022

A milestone vote in the Senate on Thursday gave Americans their first Black woman Supreme Court justice, elevating Judge Ketanji Brown Jackson from the U.S. Circuit Court of Appeals and putting her in line for a soon-to-be open seat on the nation’s highest court. 

Senate Democrats were joined by three Republicans in backing the judge, who won approval on a 53-47 vote. Vice President Kamala Harris presided over the vote, while Judge Jackson watched at the White House with President Biden.

The confirmation gives Mr. Biden a rare major legislative win, delivering on a promise he made in the 2020 presidential campaign to install a Black woman on the high court.



The vote lacked drama, with Judge Jackson breezing through her confirmation hearing and the outcome apparent for weeks. But that did not dampen the historic moment for senators, who said the judge’s approval opens new horizons for Black women and girls.

Senate Majority Leader Sen. Charles E. Schumer, New York Democrat, said it was a “joyous day.”

“It’s been a dark two years with COVID,” he said on the chamber floor. “But even in the darkest times, there are bright lights. Today is one of the brightest lights and let us hope it’s a metaphor and indication of many more bright lights to come.

“Increasing the diversity of the court has been one of my highest priorities,” he added. “One judge at a time, this majority is expanding the possibility of who merits consideration to the bench.”

White House press secretary Jen Psaki touted the confirmation as a fulfilled campaign promise.

“This is a tremendously historic day,” she said.

Republicans said Judge Jackson brought a compelling personal story to the approval process, but chided her for refusing to condemn left-wing talking points such as court-packing and gender and race theories, and for delivering evasive answers on her judging philosophy.

“The Biden administration let the radicals run the show,” said Senate Minority Leader Mitch McConnell, Kentucky Republican. “Today the far left will get the Supreme Court justice they wanted.”

Most GOP senators predicted Judge Jackson will be more liberal than Justice Stephen G. Breyer, the member she will replace when his retirement becomes official at the end of the court’s current term.

“I believe she will prove to be the furthest left of any justice to ever serve on the Supreme Court,” said Sen. Ted Cruz, Texas Republican.

The only Black Republican in the chamber, Sen. Tim Scott of South Carolina, opposed Judge Jackson’s confirmation at both the Supreme Court and circuit court levels. He said his concern is her judicial activism.

“Ideology must be the determining factor — not identity — when considering such an important lifetime appointment,” Mr. Scott said. “It is clear that Judge Jackson’s judicial philosophy and positions on the defining issues of our time make her the wrong choice for the Supreme Court.”

Judge Jackson, a Harvard Law School graduate who once clerked for Justice Breyer, has sat on the U.S. Circuit Court of Appeals for the District of Columbia since June, and before that spent eight years as a district judge in Washington, where she came to the attention of liberal activists with her rulings against former President Donald Trump on a variety of issues, including executive privilege and immigration.

She ruled against Mr. Trump’s attempt to prevent the release of White House records concerning the Jan. 6, 2021, attack at the U.S. Capitol. She also sided with congressional Democrats in their attempt to get Mr. Trump’s former White House counsel, Don McGahn, to testify in their impeachment inquiries against the former president.

In 2017, Judge Jackson sentenced the “Pizzagate” shooter to four years in prison. The infamous case involved a pizza parlor in Washington where a man from North Carolina opened fire after a false right-wing conspiracy theory was circulated online, claiming the restaurant was at the center of an alleged child-sex abuse ring involving influential Democrats.

She also issued a ruling blocking a Trump administration get-tough deportation policy. That ruling was unanimously overturned by the circuit court, which said she botched the language of the law.

Judge Jackson has a wide range of experience as a lawyer, having worked in both private practice and as an assistant federal public defender. She also served on the U.S. Sentencing Commission during the Obama administration.

Judge Jackson will be the sixth woman to sit on the high court, and she‘ll join three other women currently on the court: Justices Sonia Sotomayor, Elena Kagan and Amy Coney Barrett. Women will hold nearly half of the nine seats.

She will also become just the third Black justice in history and will join Justice Clarence Thomas to mark the first time the court has had two sitting Black justices at one time.

The 53-47 vote for Judge Jackson marks the narrowest margin of victory for any Democratic presidential Supreme Court pick since before the Civil War.

Usually it has been GOP nominees who have squeaked through, including Mr. Trump’s picks, as Democrats have been more inclined to impose ideological tests on Supreme Court nominees.

Judge Jackson’s narrow vote signals Republicans are now fully engaged in the same practice.

Indeed, Sen. Lindsey Graham, a South Carolina Republican who says he generally likes to give a president deference on high court picks, and who voted for Judge Jackson to take her seat on the circuit court just last year, said he couldn’t back her elevation to justice because of her ideological bent.

“We live in an America today where your ideology is held against you if you’re a conservative. When you’re a liberal, we’re supposed to embrace everything about you and not ask hard questions. That’s not the world we’re going to live in,” Mr. Graham told colleagues this week.

The three Republicans who joined Democrats were Sens. Susan M. Collins of Maine, Lisa Murkowski of Alaska and Mitt Romney of Utah.

Judge Jackson’s victory was only possible because the threshold for clearing a Senate filibuster for judicial nominations was reduced over the last decade. Now it takes only a majority vote, rather than the 60-vote threshold of years past.

Judge Jackson’s path to confirmation was relatively painless, particularly when compared to the nastiness of the process for Mr. Trump’s three nominees.

Her personal story, and her relative lack of experience at the appellate court level, where she has served for 10 months, left opponents with few avenues of attack.

The one that drew the most attention was her handling of cases involving child pornography offenders.

Republicans said in every case involving a consumer of child porn, she delivered sentences well below what guidelines called for and what prosecutors sought.

Mr. Cruz pointed to one case in which officers found more than 600 images of child porn on a man’s computer. Sentencing guidelines suggested the felon should go to prison for more than 151 months. Judge Jackson sentenced him to 60 months, the mandatory minimum allowed.

Another case involved images of sexual abuse of toddlers. The defendant pleaded guilty and the prosecution sought more than 78 months imprisonment. The judge, while lecturing the defendant on the egregious nature of the crime, sentenced him to 28 months.

“No one case can stand in for a judge’s entire record,” Judge Jackson told Republicans during her confirmation hearing. “I have sentenced more than 100 people in a variety of egregious circumstances. In every case, especially cases that involve the kinds of acts you are talking about, the kinds of evidence that I had to deal with as a judge, in every case I am balancing the factors that Congress has determined are appropriate.”

Democrats said Judge Jackson’s sentences tracked with how other judges handled similar cases.

But the fight sparked new attention to child pornography laws, with even Democrats saying Congress may have left judges with too much leeway.

Senate Judiciary Committee Chairman Sen. Richard J. Durbin, Illinois Democrat, said it may be time to revisit sentencing laws.

“Part of our job, we have failed in responding to the changing circumstances that face this crime. What has it been, 15 or 16 years? She is not an outlier in sentencing. Seventy percent of the federal judges face the same dilemma and wonder why Congress has failed to act,” Mr. Durbin said during the hearing. “We have to update these guidelines.”

Liberal advocacy groups cheered the confirmation, with Demand Justice declaring she shattered a glass ceiling — not just becoming the first Black woman to become a justice, but also the first public defender on the court.

“Jackson’s slam dunk of a confirmation process makes clear that the era of the public defender judge has arrived, and Democrats should be emboldened to push forward with professionally diverse judges at all levels of the judiciary,” said Christopher Kang, chief counsel of Demand Justice.

But conservative groups warned she would be too extreme.

“Judge Jackson is one of the most overturned judges in D.C. If she is confirmed, people will have no place to appeal when she gets the Constitution and law wrong from the bench of the Supreme Court of the United States,” said Matt Whitaker, co-chair of the Center for Law and Justice at the America First Policy Institute and acting attorney general in the Trump administration.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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