- - Sunday, March 6, 2022

President Biden nominated Judge Ketanji Brown Jackson, one of retiring Justice Stephen G. Breyer’s former law clerks, as his replacement on the United States Supreme Court. While Mrs. Jackson has some impressive credentials, ranging from two Ivy League degrees to eight years on the bench, it appears that her experience hasn’t translated to judicial accuracy. In fact, the high rate at which her decisions are reversed suggests that Mrs. Jackson is not ready for primetime on the Supreme Court.

Mrs. Jackson has a bachelor’s degree and a law degree from Harvard, served as a federal district judge for over seven years and currently sits on the U.S. Court of Appeals for the D.C. Circuit — a court that is a frequent stop for justices before they sit on the Supreme Court. In addition to her judicial experience and Ivy League pedigree, Mrs. Jackson brings something to the high court that no other justice has: experience as a federal public defender.

No doubt that Mr. Biden chose Mrs. Jackson because, besides her credentials, she fulfills his promise to nominate a Black woman. Notably, Mrs. Jackson’s most recent confirmation hearing to the D.C. Circuit was only a year ago, where she was able to slide through her confirmation with a few Republican votes.

However, despite her successful appointment to the second most important court in the country, a confirmation to a court of appeals does not compare to the high stakes of the Supreme Court. Even Republicans who supported her the first time around will likely subject her to more heightened scrutiny before voting to confirm her to replace Justice Breyer.

Although Mrs. Jackson’s placement on the court will not change the 6-3 conservative majority, Republicans are likely to highlight her liberal judicial philosophy and her most vulnerable point of weakness: her reversal rate.

While serving on the D.C. Circuit, Mrs. Jackson has authored only two written opinions, but she wrote nearly 500 orders as a federal district judge. According to my law firm’s research, the D.C. Circuit overturned her appealed decisions 11.9% of the time. Compared to the 21 current district judges on the D.C. District Court for whom data are available, Mrs. Jackson’s reversal rate rank places her in the bottom 36.4%.

This is notable because the D.C. Circuit is one of the more liberal courts of appeals in the nation, with the majority being Democrat appointees. Mrs. Jackson’s poor reversal rate among judges who share her ideological orientation will strike many Republican senators as an indication of low judicial competence and strong judicial activism.

One of Mrs. Jackson’s most prominent reversals was Make the Road New York v. Wolf. The D.C. Circuit panel concluded that Mrs. Jackson wrongly issued a nationwide injunction preventing the Trump administration from expanding the “Expedited Removal” program for noncitizens. The panel of mostly Democratic appointees reversed her decision on the basis that it lacked sufficient legal basis and concluded that she engaged in judicial “abuse of discretion.”

Republicans will point to this and other reversals as evidence that Mrs. Jackson is prone to judicial activism and overreach. Judicial activism is a frequent complaint from Republicans about Democrat-appointed justices, whom Republicans accuse of bending the law to reach preferred outcomes in politically charged cases.

While Mr. Biden sought to earn political points by nominating the first Black woman to the U.S. Supreme Court, his pick demonstrates his true intentions: to find an activist judge to replace Justice Breyer. The fact that Mr. Biden filibustered the judicial nomination of Janice Rogers Brown, a Black woman, to the D.C. Circuit (who was then a leading potential pick for the Supreme Court) is further evidence that his newfound concern for the racial diversity of the Supreme Court is smoke and mirrors.

But optics won’t protect Mrs. Jackson from tough questions about her judicial accuracy rate at this month’s confirmation hearing. While her defenders will focus on her race and resume, Republicans will shine a bright light on her judicial philosophy.

• Keisha Russell is Counsel to First Liberty Institute, a nonprofit law firm dedicated to defending religious freedom for all. Read more at FirstLiberty.org.

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