Circuit Court of Appeals Judge Ketanji Brown Jackson is President Biden’s nominee to become the next associate justice of the Supreme Court of the United States. With confirmation hearings underway, is confirmation for Judge Jackson a sure thing?
When Associate Justice Stephen Breyer finally decided to retire, it was done for expedient political reasons. With it widely expected that Republicans will make significant gains in November’s midterm elections, and the Supreme Court under historically unparalleled scrutiny for their shadow docket and judicial activism, the timing of Biden’s nomination was crucial — wait too long and lose the chance of keeping the conservative majority at “only” 6-3 rather than potentially 7-2.
So, with the nomination of Jackson accomplished, where do we go from here?
The first question to address is whether Jackson meets the legal qualifications of a Supreme Court justice. As John Lawlor, a Fort Lauderdale, Fla., lawyer, explains, there is no legal qualification requirement to sit on the Supreme Court: “Legally, there are no qualifications mandated by the Constitution to become a Supreme Court justice aside from U.S. citizenship, which does not need to be by birth. According to the law, a justice does not even need to be a lawyer.”
Of course, in a practical sense, all justices throughout the history of the Supreme Court have had a legal education, though one justice (James Francis Byrnes, 1941) did not even graduate from high school and was self-taught in the law.
So once we have a valid nominee, we move to the Senate Judiciary Committee, where there are two factions. The first, perhaps exclusively Democrats, will argue that Jackson not only meets the legal requirements to become a Supreme Court associate justice but meets and dramatically exceeds them by all practical standards and considerations. The logical conclusion is that Jackson, who has been a superb jurist for her entire career, would be a strong and welcome addition to the Supreme Court.
The other faction, perhaps exclusively Republicans, will attempt to tear apart at pieces of Jackson’s record, more than likely beginning with the fact that she clerked for Breyer himself after Harvard Law. While there are several potential angles of attack on Jackson’s record for this camp, the most likely is that she would be a justice who satisfied a more extreme left-wing political faction than would be to their tastes. In other words, while a moderate liberal might be reasonably OK because it’s inevitable, Jackson is too far left.
It really is going to be an uphill battle to make a cogent argument that Jackson is not as qualified to sit on the Supreme Court as the most recent additions to the court under the Trump administration. There is no doubt that this argument will be attempted from several perspectives, yet its chance of success is slim to none. All that is required to advance the nominee from the Judiciary Committee to the full Senate is a three-fifths’ supermajority of the committee itself.
Ultimately, once the president nominates someone for a vacancy on the court, all that is legally required for confirmation is for the full Senate to approve the nominee by a simple majority. As in every issue with the current Senate, a 50-50 tie would go to a deciding vote by Vice President Kamala Harris, who would surely vote to confirm.
So even in a totally partisan vote, absent any Democrats jumping ship on Jackson, President Biden will get this nomination through, yet it won’t be without some political and judicial theater. What we will see in the coming days is how rocky a Senate road the first Black woman Supreme Court justice will have to travel during the confirmation process.
