- The Washington Times - Friday, February 11, 2022

Judge Ketanji Brown Jackson, believed to be on President Biden’s short list for nomination to the Supreme Court, is coming under fire from conservatives who say she is too progressive and lacks the judicial temperament necessary for the high court. 

Conservative court watchers don’t view Mr. Biden’s list of potential Supreme Court nominees as being too different from retiring Justice Stephen G. Breyer, saying each candidate would be a reliable liberal vote on hot-button issues, just as Justice Breyer was during his time on the court.

But Judge Jackson, whom Mr. Biden appointed to the prestigious U.S. Circuit Court for District of Columbia last June, is being criticized by conservatives who claim she has a record of reaching beyond her authority as a judge.

“People on the right don’t think Brown Jackson is stellar intellectually,” said Curt Levey, president of the Committee for Justice. “Certainly, people on the left think she is brilliant.”

Prior to joining the D.C. Circuit, Judge Jackson spent eight years on the U.S. District Court in D.C., where she issued more than 500 opinions.

During that time, Judge Jackson wowed liberals with her rulings in cases against former President Donald Trump.

She ruled against Mr. Trump’s attempt to conceal 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.

Carrie Severino, president of the Judicial Crisis Network, said that in the case involving Mr. McGahn’s testimony, Judge Jackson suggested Mr. Trump was trying to be a king — language that Mrs. Severino said was “intemperate” for a judge.

Nevertheless, she’s been viewed as a potential high court nominee by court watchers even before Justice Breyer announced his plans to retire.

Shortly after the president announced he would fill a vacancy on the high court with a Black woman, Mr. Biden elevated Judge Jackson from the district court to the circuit court. The appellate court is considered a steppingstone to the high court.

Chief Justice John G. Roberts Jr., Justice Brett M. Kavanaugh and Justice Clarence Thomas — a third of the current justices on the bench — all sat on the D.C. Circuit prior to being elevated.

Dan Goldberg, legal director at the progressive Alliance for Justice, said Judge Jackson has a record that should receive bipartisan support during the confirmation process. He said she was confirmed to her district judgeship and her appellate court seat with support from both Democrat and Republican senators.

“The breadth of her experience — it’s no surprise she is on the short list,” he said.

Mr. Biden told NBC News on Thursday that he and his advisers are doing a “deep dive” on four potential nominees. 

Two other potential picks who have received attention in Washington are South Carolina U.S. District Court Judge J. Michelle Childs and California Supreme Court Justice Leondra Kruger.

Judge Childs has received praise from liberal court watchers for her record on voting rights.

“At a time when the Supreme Court is sadly undermining the Voting Rights Act … Childs had a case dealing with South Carolina rules that made it very difficult for people to vote by absentee ballot in the middle of the pandemic,” said Mr. Goldberg.

In that dispute, Judge Childs struck down a witness requirement for voting by absentee ballots during the COVID-19 pandemic.

Liberals also view her as being an advocate for LGBTQ rights, pointing to a 2014 case where she said it was unconstitutional for South Carolina not to recognize the same-sex marriage of two women from another state.

Her opinion in that case was issued prior to the Supreme Court legalizing same-sex marriage in 2015.

Judge Kruger, meanwhile, is seen as a potentially more moderate pick by some conservatives. Mr. Levey said that she’s been a moderate liberal during her time on the California Supreme Court.

Progressives have cheered her time working in the solicitor general’s office during the Obama administration, defending the Affordable Care Act.

“I think it is a testament to Joe Biden that somebody on his short list is somebody who was fighting to ensure quality access of health care to millions,” said Mr. Goldberg.

Elliot Mincberg, senior fellow at People for the American Way, said it’s important to remember that Mr. Biden could be looking at other potential nominees — but all three judges would bring a unique perspective as a Black woman.

“They are all frankly very impressive,” he said. “The fact that these three — and many other Black women — would be so well qualified for this kind of a spot is really a testament to the achievement we have seen despite many barriers.”

Mr. Biden is expected to announce his replacement for Justice Breyer by the end of the month. 

“I think whomever I pick will get a vote from the Republicans,” Mr. Biden told NBC. “I’m not looking to make an ideological choice. I’m looking for someone to replace Judge Breyer with the same kind of capacity Judge Breyer had: with an open mind.”

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

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