Wednesday, January 26, 2022


Supreme Court justice Stephen Breyer has announced will soon announce his retirement, effective at the end of this term. President Biden will have a chance to appoint Breyer's successor while Democrats control the Senate.

High on Biden's list for the Court is Judge Ketanji Brown Jackson, whom he appointed to the D.C. Circuit of the U.S. Court of Appeals last year; Jackson was confirmed in June on a 53-44 vote, with all the members of the Democratic caucus voting to confirm along with Republican senators Susan Collins, Lindsey Graham, and Lisa Murkowski.

Some observers had predicted a much more difficult confirmation process for Jackson. In April 2021, Bloomberg Law's Madison Alder wrote:
Republicans are expected to make U.S. District Judge Ketanji Brown Jackson the focus when President Joe Biden’s first five judicial nominees appear before the Senate Judiciary Committee on Wednesday....

“I almost feel bad for her because she’s going to be destroyed,” said Josh Blackman, a professor at South Texas College of Law Houston. She’s well equipped to handle that criticism, he said. “But Republicans are going to try to destroy her, to tarnish her so she won’t get picked for the Supreme Court.”

Conservative activists are pointing to decisions Jackson has made as a federal trial court judge that were reversed on appeal as a potential blemish on her record.

“She’s someone who has a record of being regularly overturned by the D.C. Circuit, including the most liberal judges in that circuit,” Carrie Severino, president of the conservative group Judicial Crisis Network.

Ed Whelan, a senior fellow of the conservative Ethics and Public Policy Center who writes about judicial nominees, called Jackson’s record of reversals “striking.”
(You may recall Ed Whelan as the guy who developed a convoluted theory that Brett Kavanaugh could not have sexually assaulted Christine Blasey Ford when they were both teenagers, based in part on Zillow floor plans.)
Conservatives are seizing Jackson’s 2019 ruling that provisions in three Trump executive orders conflicted with federal employee rights to collective bargaining. That decision was reversed unanimously by the D.C. Circuit, which held Jackson didn’t have the jurisdiction to hear the case....

Severino also cited Jackson’s use of “shocking” political language in her 2019 decision regarding the House Judiciary Committee’s subpoena request for former White House Counsel Don McGahn to testify during its investigation of potential meddling in the 2016 presidential election. In her 120-page decision, Jackson wrote “presidents are not kings.”
(I think the Framers would be rather surprised to learn that "presidents are not kings" is "shocking" political language under the American system.)

Most of this seems of little interest to ordinary Americans, even right-wing Americans. But a 2019 Gateway Pundit post reminds us of one case Jackson heard as a district judge that the GOP could easily use to play to the cheap seats:
Another day, another corrupt activist Obama judge legislating from the bench.

US District Judge for the District of Columbia Ketanji Onyika Brown Jackson on Tuesday temporarily blocked the deportation of two migrants who claimed the Trump Administration’s new “lesson plan” for asylum officers makes it harder to prove fear of returning to their home country.

In April the Trump Administration revised training guidelines for asylum officers in an effort to stop the unprecedented surge of migrants seeking asylum....

Now an activist Obama judge is using these new ‘lesson plans’ as a way to block the Trump Admin from getting the border crisis under control....

Acting US Citizenship and Immigration Director Ken Cuccinelli slammed the activist judge....

The phrase "lesson plan" suggests something innocuous -- liberals are so deranged that they're attacking lesson plans! -- but the Trump lesson plans were designed to significantly reduce the number of asylum-seekers who could demonstrate "credible fear." Jackson eventually blocked the use of the lesson plans outright, although it was subsequently reported that they were still in use near the end of Trump's term.

In any event, it's easy to imagine "lesson plan" becoming a dog whistle on the right, a phrase spat out with contempt by Republican senators, and also by Fox commentators (and eventually by your right-wing relatives). Or maybe Republicans will conclude that this is a one-for-one swap of liberals on the Court, and that even Joe Manchin and Kyrsten Sinema haven't been blocking Biden's judicial picks, so there's no point in fighting. But if they do turn this into a brawl, I won't be surprised.

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