Last month, President Joe Biden announced Judge Ketanji Brown Jackson as his nominee to serve as the 116th Associate Justice of the U.S. Supreme Court.
I’m sure you’ve been watching or reading coverage of Judge Jackson’s confirmation hearing, which began on March 21. And, as attorneys, I imagine you’ve been fielding questions about who Judge Jackson is, if she is qualified, and how the vetting process works.
While the process for nominating a new Supreme Court justice isn’t new, this time is different thanks to the historical impact that Judge Jackson’s nomination has on the Supreme Court and our country.
Sticking to the facts when answering questions about Judge Jackson and the nomination process is always a good idea, but it’s even more important now when misinformation is widely available.
To that end, below I outline some important facts about the vetting process, the nominee, and the impact. Feel free to pass these along to inquiring parties.
The vetting process
While the U.S. president is responsible for selecting Supreme Court nominees, the president isn’t the only person involved in the process.
The American Bar Association’s Standing Committee on the Federal Judiciary has been evaluating nominees to the U.S. Supreme Court, circuit courts of appeals, district courts (including territorial district courts), and the Court of International Trade since 1952.
The Standing Committee:
“evaluates the professional qualifications of nominees to the Supreme Court by conducting extensive peer reviews of each nominee’s integrity, professional competence, and judicial temperament. In conducting its evaluations, the Standing Committee focuses solely on a nominee’s professional qualifications. It does not take into consideration a nominee’s philosophy, political affiliation or ideology. While these criteria — integrity, professional competence, and judicial temperament — are the basis for the Standing Committee’s evaluation of all federal court nominees, the Committee’s investigations of Supreme Court nominees are particularly rigorous. The significance, range, and complexity of the issues considered by the Supreme Court demand that nominees appointed to the Court be of exceptional ability. The Standing Committee conducts the most extensive nationwide peer review possible on the premise that the highest court in the land requires a lawyer or judge with exceptional professional qualifications.”
The Standing Committee uses three rating categories when evaluating nominees: “Well Qualified,” “Qualified,” and “Not Qualified.”
To merit a “Well Qualified” rating, a nominee must have outstanding legal ability and exceptional breadth of experience, and meet the very highest standards of integrity, professional competence, and judicial temperament.
Once the Standing Committee has completed its evaluation, the Chair, which is currently Chicago-based Judge Ann Claire Williams (Ret.), submits the rating to the Senate Judiciary Committee, the White House, the U.S. Department of Justice, and the nominee.
On March 18, 2022, the Standing Committee rated Judge Jackson as “Well Qualified.”
The Senate Judiciary Committee traditionally invites the Standing Committee to testify as the first public witness at the nominee’s confirmation hearing. Judge Williams testified on Thursday, March 24.
In addition to the Standing Committee’s evaluation, other organizations like state bar associations, affinity bar associations, and members of the judiciary, submit letters of support or concern to the Senate Judiciary Committee to assist in the confirmation process.
Judge Jackson: the nominee
Over the last several months, I’ve heard Judge Jackson described in many ways, but mentions of her role as a daughter, a wife, and a mother, haven’t been as prevalent. And these characteristics, in my opinion, are just as important to what she’ll bring to the bench as her experience as an appellate court judge and a public defender.
I bring this to your attention because when people become public figures, they often lose their humanity in the minds of others. We forget that, at their core, they are regular people just like the rest of us. Remembering that Judge Jackson (or anyone) is someone’s daughter, wife, and mother makes her more relatable and our expectations of her more realistic.
However, when it comes to her accomplishments, Judge Jackson is anything but relatable. She graduated from Harvard University magna cum laude and Harvard Law cum laude, making her a double alumna at the top of her class in one of the world’s most esteemed universities. To add to that, she was an editor of the prestigious Harvard Law Review.
Judge Jackson has spent her 25-year-plus legal career working in areas spanning our legal system because she wanted to learn all aspects of the law. This breadth of experience provides her with a diverse and unique appreciation for the functioning of our justice system.
She clerked for Supreme Court Justice Stephen Breyer, served as a public defender, was Vice Chair of the U.S. Sentencing Commission, and served as a judge on the U.S. District Court for the District of Columbia and the U.S. Court of Appeals for the D.C. Circuit.
In March 2022, a bipartisan group of Black law school deans wrote to the U.S. Senate to express their strong and unequivocal support for Judge Jackson’s confirmation.
Dean Cassandra Hill of Northern Illinois University College of Law signed on to the letter. I spoke with Dean Hill about her endorsement for Judge Jackson.
“There is no question that Judge Jackson is extremely qualified for a seat on the U.S. Supreme Court,” Dean Hill said. “Judge Jackson has authored more than 570 judicial opinions and has a reversal rate of only 2%, which is substantially lower than the rate for federal judges nationally. Judge Jackson’s record demonstrates that she is a fair and impartial judge who follows the facts and the law.”
Judge Jackson’s impact
There have been 115 Supreme Court justices in our nation’s history and only seven haven’t been white men. Of those seven, two were Black men and five were women. If confirmed, Judge Jackson will be the first Black woman to serve on the U.S. Supreme Court.
When asked about the impact of Judge Jackson’s nomination, Dean Hill said that it shows that the accomplishments and contributions of Black women are finally being recognized and respected.
“Racial and gender discrimination have historically prevented exceptional Black women from achieving career heights, which they should have reached given their impressive records,” she said. “This nomination places a national spotlight on those talents and hopefully will open minds and doors to new opportunities for Black women and all women of color.”
However, the nomination shouldn’t discount the significant professional obstacles women of color, and specifically Black women, still face.
“Judge Jackson’s nomination places a national spotlight on the challenges that remain in our country; the challenges that a Black woman faces as she rises to a position of leadership…questions about her competence and racial and gender discrimination,” Dean Hill said. “Black women deal with microaggressions every day in every industry.”
And I agree; Black women are often considered less-than. Even though Judge Jackson’s experience speaks for itself, many local and national leaders and media outlets have questioned her ability to serve. And it seems like many of these critiques haven’t been made of previous nominees.
For me, the impact is a little different. Becoming a Supreme Court justice was never a career goal of mine, although it was all a high school friend talked about. He was going to be the next Thurgood Marshall.
For a little Black girl from South Carolina, becoming a lawyer was achievable, sure, but sitting on the highest court in the U.S. didn’t even seem like a possibility.
So, the impact I see is for the next generation of little girls who can set their sights higher, knowing that someone has laid a path for them to follow.
Regardless of your interest in the nomination or confirmation process, having conversations about this historic nominee is almost unavoidable if you’re in the legal profession.
I hope that by reading this article, you have some talking points you can share with your colleagues, friends, and family.
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2 thoughts on “What Lawyers Need to Know About the Confirmation Process for Judge Ketanji Brown Jackson”
It’s sad that you grew up thinking a Black woman could not be on the Supreme Court. It would have happened when you were growing up, 17 years ago, if Joe Biden hadn’t threatened to filibuster the pending nomination of Janice Rogers Brown to sit on the Supreme Court. That would have been the first time a filibuster was used against the nomination of an Associate Justice. Judge Brown has an amazing background and life story. She was a mainstream judge who wrote more opinions for the California Supreme Court than any other judge in its history, at the time, as well as the most popular vote-getter in California on its Supreme Court. Biden and Democrats also blocked the nomination of a Hispanic, Judge Miguel Estrada to the federal bench during that era. Things would have been different and, perhaps more inspirational, had those appointments gone through.