In the News - Judge Ketanji Brown Jackson

Show Notes

Aughie and Nia briefly discuss President Joe Biden's nominee to the Supreme Court, Judge Ketanji Brown Jackson.

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N. Rodgers: Hey Aughie.

J. Aughenbaugh: Good afternoon, Nia. How are you?

N. Rodgers: I'm excited because we have a SCOTUS nominee.

J. Aughenbaugh: We do have a nominee for the United States Supreme Court today. Yes, we do.

N. Rodgers: Ketanji Brown Jackson, who we are going to refer to as Judge Brown Jackson.

J. Aughenbaugh: Yes. Judge Brown Jackson. That is her formal title. Currently she serves on the DC Circuit Court of Appeals, and she's been nominated by President Biden to replace Justice Stephen Breyer, who after 27 years of service, on the United States Supreme Court announced last month, that he was stepping down at the end of the current Supreme Court term.

N. Rodgers: Which is nice that he didn't go in the middle of one because that's super annoying. Right here, a quick read up on these cases and good luck, which is, or sit out your first six months because you can't really do anything.

J. Aughenbaugh: He actually did it like a professional in the sense that he's going to stay on until the end of his term. Which means that if he had retired during the middle of the term, that would've left the court with eight justices until his replacement would've been nominated and confirmed. Some justices actually wait until the summer, which then puts a heavy burden on the White House and the Senate to get somebody confirmed by the end of September.

N. Rodgers: Well, and the Senate, as we have often discussed, is off on vacation most of the time actually getting them confirmed somebody. If we could just get a moment not justice because right justice is the Supreme Court.

J. Aughenbaugh: Court. That's right.

N. Rodgers: Judge Brown Jackson is from the DC appellate court, and that is not an uncommon place to find nominees to the Supreme, right?

J. Aughenbaugh: That is correct. On the current Supreme Court, you have three former DC Circuit Court of Appeals Judges, Roberts, Thomas, and Kavanaugh.

N. Rodgers: Oh, okay. She may have served with Kavanaugh then because that's been recent enough.

J. Aughenbaugh: No. She just got onto DC Circuit Court of Appeals since President Biden nominated her last year.

N. Rodgers: How did her nomination for that go?

J. Aughenbaugh: The vote was 53 to 44, three Republican senators, actually cross lines. Senator Lindsey Graham, Susan Collins from New Hampshire, and Lisa Murkowski from Alaska.

N. Rodgers: You know what? I love Lisa Murkowski because she cannot be bothered, she's like, I'm from Alaska. We go our own way regardless of what the party says. Getting herself elected by a writing campaign at some point.

J. Aughenbaugh: She was an independent, because she lost the Republican Party primary. She got primaried, and she was encouraged to run as an independent. She wanted since then, you know who her biggest fan is in the Senate? Mitch McConnell. Mitch McConnell made it very clear that the Republican National Committee will support Lisa Murkowski, even though the former President Donald Trump, backed Republican state candidate to run against her in the primaries.

N. Rodgers: Lindsey Graham is interesting, is Judge Brown Jackson from South Carolina?

J. Aughenbaugh: No, and this is going to be one of the more interesting things as this plays out, Nia. Lindsey Graham made it very clear that he wanted federal district court Judge Michelle Childs, who is from his home state of South Carolina, to be picked by President Biden. He's already commented on social media that President Biden quite obviously was paying attention to the radical left-wing of the Democratic Party. I'm not entirely sure if Judge Brown Jackson will get his votes for her nomination on the Supreme Court, which by the way, it's not unusual. I will give you an historical example Robert Bork, when he was nominated to serve on a DC Circuit Court of Appeals, the vote was 97 to 0 in favor of him to serve on the DC Circuit Court of Appeals. But like five years later when Ronald Reagan nominated him to the Supreme Court, he ends up getting rejected by the Senate.

N. Rodgers: Even though the vote went for her just recently it may not go for her this time.

J. Aughenbaugh: Yeah. What I think will happen is both Murkowski and Collins will vote to uphold her. Unless something comes out during the Senate confirmation process.

N. Rodgers: Turns out she was a serial killer with heads buried in her basement.

J. Aughenbaugh: Yeah. She belongs to a secret liberal fascist wing.

N. Rodgers: Over some radical thing. Where they just can't vote for her.

J. Aughenbaugh: Yeah. They just can't.

N. Rodgers: Sorry.

J. Aughenbaugh: Yeah. Go ahead.

N. Rodgers: No. Go ahead, you were going to say.

J. Aughenbaugh: She's got a fascinating background. Was born in Miami to I think her mom was a school principal, her dad was an attorney for a school district in South Florida. She went to Harvard undergrad and law school. So she checks those boxes in regards to our recent Supreme Court justices.

N. Rodgers: The Ivies.

J. Aughenbaugh: Yeah. The Ivies.

N. Rodgers: They are not coming from money.

J. Aughenbaugh: No.

N. Rodgers: Her parents sounds like they were middle-class folks.

J. Aughenbaugh: Upper middle-class folks. But after Harvard, she did clerk for a couple for federal court judges, including Justice Stephen Breyer. If she's confirmed, she will be the third justice on our current Supreme Court who's taking the seat of their former boss. Roberts was a clerk for William Rehnquist. When Rehnquist died, Roberts was picked to be Chief Justice to replace him. Brett Kavanaugh clerked for Anthony Kennedy and Anthony Kennedy retired Kavanaugh was picked.

N. Rodgers: Is almost like when you're an alumni of the school and your kid gets preferential treatment. Although in fairness, the justices have a lot of enough clerks.

J. Aughenbaugh: Yes.

N. Rodgers: They have one or two. There's a bunch of clerks so it's not a direct one for one kind of thing. You don't work for a guy and then get his seat.

J. Aughenbaugh: Yeah, I would be shocked by the way if we find out in the future that Stephen Breyer actually lobbied President Biden on behalf of Judge Brown Jackson. Because Stephen Breyer just doesn't do that. I mean, that's not what you do. When you're a judge, you don't lobby the elected branches so that your former clerks.

N. Rodgers: Can get the jobs. Right.

J. Aughenbaugh: In terms of her background Nia, at various points, she will be the first Supreme Court justice since Thurgood Marshall with a criminal defense background. She was a public defender for about 2.5 years. She also served on the United States Sentencing Commission, and she's also worked in big law. She actually worked for a corporate law firm for a couple of years. So she's got varied professional experience coming to the court.

N. Rodgers: Sounds like she's got a lot of tops.

J. Aughenbaugh: Yeah.

N. Rodgers: Can I take a moment to complain about something?

J. Aughenbaugh: Yeah, sure.

N. Rodgers: Because I know we're trying to keep this relatively short so I don't want to go deep into my complaining, but I'm frustrated with President Biden that he set out as his criterion. I will have a black woman instead of, I will find a really good judge and put them on the Supreme Court. Oh, look, it happens to be a black woman. He's made her race and her gender center to this discussion and I am frustrated by that. I understand politically why that had to happen. I understand he was trying similarly to his choice of Kamala Harris, he was trying to speak to it to a lot in the Supreme Court.

J. Aughenbaugh: Underrepresented communities in regards to important government positions.

N. Rodgers: But I think it will weigh on her if she is successful. I think that in some quarters, there will be snortiness about of course she would vote that way and they will make her gender and her race central to just her jurisprudence as opposed to she has jurisprudence and they happen to be from a woman of color.

J. Aughenbaugh: Yeah.

N. Rodgers: Same thing similarly happened to Sotomayor. There's been a little bit of well, I mean, she speaks for the Hispanic women, I'm like no, she speaks for one Hispanic woman named Sonia Sotomayor. Speaker 3: I've said this for instance to students who have written papers about Justice Sotomayor.

J. Aughenbaugh: You do know that there's plenty of scholarship about Justice Sotomayor that says she is a really good justice. They don't even mention, that she is Hispanic and a woman. That she is in many ways the Liberal Conscience on the current Supreme Court. Particularly with Justice Ginsburg's passing, Sonia Sotomayor has, if you will, that role on the court. A position that was previously held, for instance, by in addition to Ginsburg, Thurgood Marshall. So it's really a shame, because if you just look at Judge Brown Jackson's, if you will credentials, I suspect with a Democratic president, she would've been on the shortlist anyways.

N. Rodgers: She's clearly got chops. She also passed a vote to get down to the DC.

J. Aughenbaugh: The Circuit Court of Appeals. In a very highly polarized United States Senate.

N. Rodgers: It's unfortunate that she's going to carry that tag, I think. At least for a while.

J. Aughenbaugh: At least for a while. Because she'll get on the court. I know this is one of the questions you wanted to touch upon in this short. But the impact she will have on the Supreme Court, unfortunately, in terms of case outcomes won't be minimal.

N. Rodgers: Because it's a 6:3 court right now.

J. Aughenbaugh: Yeah. 6:3.

N. Rodgers: She can stand up. She and Sonia Sotomayor could stand up and shout at the top of their lungs. They would be two women shouting into the wind.

J. Aughenbaugh: Yeah. Because those two plus Justice Kagan, which by the way, that is also very noteworthy. All three liberals on the court, are women. By the way, folks, this should not go unremarked. Four-ninths of the Supreme Court is now comprised of women. Amy Coney Barrett, Elena Kagan, Sonia Sotomayor and Brown Jackson. I am projecting.

N. Rodgers: Assuming. But you are assuming.

J. Aughenbaugh: By the way, I know this is another question you had. Yes. I'm projecting she will get on the court.

N. Rodgers: That was the other question I was going to ask.

J. Aughenbaugh: I think that the vote will be something like 53-47, 54-46. I think that Murkowski, Collins, it wouldn't shock me if Mitt Romney voted in favor of her. They may pick up another Republican senator. All 50 members of the Democratic caucus in the Senate are going to vote for her.

N. Rodgers: If it's a tie, Kamala Harris is going to vote for her.

J. Aughenbaugh: She's going to get on the court. But in terms of the impact on the court, short-term, there's going to be very little difference in terms of case outcomes. If you compare her to the justice she's replacing, she's probably more liberal than Stephen Breyer. But Stephen Breyer was a faithful, consistent Liberal on the court. Okay?

N. Rodgers: Right. It's changing the balance of the court it's not.

J. Aughenbaugh: Yeah. It's not changing the balance. Now what will be interesting is, what impact will she have in the minority in regards to opinions, and the development of Supreme Court jurisprudence? Because remember Nia, you and I've talked about this on previous podcast episodes. Scalia frequently had his greatest impact when he was writing in dissent.

N. Rodgers: It's why regular what we tells students now is, "You should read the dissents because they may come back in 20 years as the majority opinion."

J. Aughenbaugh: Clarence Thomas was staking out positions when he first got onto the supreme court. Oftentimes in solo dissents. Now he's got two or three colleagues who are like, " Yeah, that stuff makes sense." You pick up another vote. Remember Justice Brennan said the most important number on the Supreme Court is five.

N. Rodgers: You don't have to have everybody. You just have to have five.

J. Aughenbaugh: You just need to have five.

N. Rodgers: We should remind listeners constantly that the court swings in its conservative versus liberal versus. That swings back and forth with deaths, with retirements. Final wrap-up question for you, if you don't mind about this judge. Will this open the door to more judges of color, sorry, not justices because they're not in the supreme. Judges of color at all the lower levels, is that one of the things that Biden is engaging here, is the, we need more under-represented folk in the judicial system and sitting in the judge BC?

J. Aughenbaugh: Yeah. If you look at President Biden's nominations for Federal judgeships in his first year, he is charting an unprecedented, if you will path, for nominating women, people of color, for Federal judgeships. His percentages, are significantly higher on pretty much almost every democratic characteristic compared to any president. Including Democratic presidents. Not even close.

N. Rodgers: That has got to grate on Mitch McConnell.

J. Aughenbaugh: Yeah. Well, Mitch McConnell was fond of saying elections have consequences. You know what Mitch is waiting for.

N. Rodgers: The midterms.

J. Aughenbaugh: Yeah. The midterms and then 2024.

N. Rodgers: When he can try to stop the progressive onslaught in the judges.

J. Aughenbaugh: As I've been telling students Nia, Mitch McConnell will go ahead and keep former President Trump basically at bay. A sort of uneasy, if you will, detente until it no longer serves Mitch McConnell's purposes. If Mitch McConnell concludes that Donald Trump cannot win the presidency in 2024.

N. Rodgers: He will ruthlessly replace him with someone else.

J. Aughenbaugh: Yes. Yeah, Mitch McConnell will go ahead and jump ship to the person who he thinks will win. Yes, Mitch McConnell is a partisan. Mitch McConnell understands that elections have consequences. That's why he played his game in 2016 when he refused to go ahead and allow Barack Obama's nominee to replace Scalia Merrick Garland, to ever get a vote in the Senate.

N. Rodgers: Which the timing of this is to prevent that from happening next year. If he does end up as senate majority leader again, they want someone firmly ensconced in that seat. Now she goes before the Senate hearing. She goes to one of the committees, it's not the full Senate.

J. Aughenbaugh: That is correct, listeners in the next step, is the FBI will do a full background investigation.

N. Rodgers: Which surely she has been vetted by the White House. Because Biden's been around the block. He actually knows you're supposed to do that thing.

J. Aughenbaugh: Yes. Then she will meet with as many senators who want to meet with her. Then they will schedule hearings in front of the Senate Judiciary Committee. Listeners if you want a good example of political symbolism, of political, if you will, circus, make sure you tune in for the Senate Judiciary hearings to confirm Judge Brown Jackson for the United States Supreme Court.

N. Rodgers: They will be on CNN. But they will also be all over YouTube and all places because she's going to be a fascinating nominee to watch.

J. Aughenbaugh: What I predict will happen is, it would not surprise me if Nia, by at some point in May we will know if Brown Jackson has been confirmed. We're almost to the start of March.

N. Rodgers: So it's going to be pretty quick?

J. Aughenbaugh: But the chair of the Senate Judiciary Committee is Dick Durbin. Senator from Illinois. Dick Durbin has made it very clear in the press in the last couple of weeks. He was waiting for the President.

N. Rodgers: To make his nominations.

J. Aughenbaugh: He's pretty much cleared the decks of Senate Judiciary Committee of pretty much all lower federal court nominees so his committee can focus on getting Brown Jackson on the Supreme Court.

N. Rodgers: Well, then we'll come back when there's more news.

J. Aughenbaugh: Yes. I suspect that we could probably fold this into our usual Supreme Court term wrap up.

N. Rodgers: Okay, awesome. Well, then we will do that. We can look forward to that. Thank you Aughie.

J. Aughenbaugh: Thank you Nia.