It is a historic moment and undoubtedly one of the highlights that will be remembered from the Biden presidency: the image of the president surrounded by two black women, his vice-president Kamala Harris and Ketanji Brown Jackson.
It is the latter that the American president has chosen to succeed Justice Stephen Breyer. His candidacy began to be considered by the Senate Judiciary Committee on Monday; this exam will last until next Thursday.
As Joe Biden promised during his campaign, he named a "black woman", the first called to sit in this institution which was entirely male until 1981 and has known, since its creation in 1789, only two black judges out of 115: to the very progressive Thurgood Marshall (who sat from 1967 to 1991) succeeded on what is implicitly "the black seat of the Court" the very conservative Clarence Thomas, still in place today. The court, made up of nine judges, had a total of four women, including three currently in office (two progressives, Elena Kagan and Sonia Sotomayor, and a conservative, Amy Barrett).
If the appointment of Ketanji Brown Jackson is confirmed, there will be near parity for the first time with four women (three progressives and one conservative) and five men. Three representatives of minorities will then sit on the Supreme Court: Clarence Thomas, the Hispanic Sonia Sotomayor and this first black woman. Joe Biden wants the Supreme Court to look a little more like the American people, which should be the case despite immediate criticism from the conservative camp.
Even before the name of the candidate chosen by the president was known, Republicans and the Trumpist right began brandishing the accusation of "identity choice", affirmative action and the quota system, criticizing beforehand the supposedly insufficient competence of the candidate not yet appointed. Senator Ted Cruz, who will be a presidential candidate in 2024 if he can and who sits on the Senate Judiciary Committee, denounced the "identity politics" of the Democrats. He stressed that it was inadmissible to reserve a place in the Court for a black woman, when they represent only 6% of the population.
However, recent Republican presidents had also, in a way, made appointments based on criteria that were not limited to competence alone: Ronald Reagan had pledged to appoint the first woman to the Supreme Court, which he did in appointing Judge Sandra Day O'Connor in 1981. Similarly, Donald Trump had "reserved" the candidacy of Amy Coney Barrett so as to have a female candidate if he were to name the one who would succeed the icon of the fight for equality and women's rights Ruth Bader Ginsburg, and no one on the right found anything wrong with it.
Then, as soon as Ketanji Brown Jackson's name became known, a second charge was added. Her opponents can hardly question the qualities of the candidate: aged 51, she has an impeccable CV which begins at Harvard, continues with the coveted position of legal assistant (law clerk) of Judge Stephen Breyer (to whom she is called to succeed) then by a seat on the Court of Appeals for the District of Columbia, a breeding ground and springboard from which three current members of the Court have come, the Chief Justice John Glover Roberts, Clarence Thomas and Brett Kavanaugh. But the conservatives find another angle of attack: Jackson would be a leftist pushed by the secret money (dark money) of the radical left.
It is true that the group Demand Justice financed advertisements vs. Amy Coney Barrett and in favor of progressive judges. However, the amounts are far from the millions of dollars spent by the tandem Federalist Society/ Judicial Crisis Network, the two lobbies favorable to right-wing judges.
La Federalist Society, created in the 1980s to counter the “leftist drift” of federal jurisdictions (according to the right), has become a powerful actor. Endowed with considerable financial resources, it played a central role in the selection of the judges appointed by Donald Trump. The former president had then literally subcontracted to him the essential task of controlling the "ideological purity" of the candidates.
With Judicial Crisis Network, she spent huge sums to push the three conservative candidates who entered the Court under Trump: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. For the latter, named eight days after the death of Ruth Bader Ginsburg, a few days before the November 2020 election and passed in force in the Senate, the two organizations funded $5,3 million in TV ads and $2,9 million in digital ads.
The stakes are both high and low. On the one hand, the nomination of the candidate presented by Joe Biden will not change the balance of the Court which would remain composed of six conservatives and three progressives. But, on the other hand, the judge who may one day be called by her initials KBJ like RBG (for Ruth Bader Ginsburg), will bring to the Court, because of her profile, a real diversity of perspectives on issues ignored or neglected by white men from the white legal aristocracy.
Married to a high-society white man of Mayflower Pilgrims and mother of adult Métis children, she has defended some of the Guantanamo prisoners. She knows the penal system, not as a prosecutor (like several current members of the Court) but as a defense lawyer (public defender).
She can put herself in the place of a black and poor defendant, especially since she also sat on the bipartisan sentencing commission (Sentencing Commission). In this role, she helped reduce the disparity between the heavy penalties for crack possession and the lighter ones for cocaine use, with the former tended to be black while the cocaine users tended to be white. . And so, accuses the right, Judge Jackson will be “soft on crime”, lax towards criminals.
And she would also be the only one, with Judge Sonia Sotomayor, to have sat in the court of first instance before becoming an appeal judge. The two women understand what a trial really is, this work which involves listening to witnesses, experts and carrying out the substantive work necessary for the drafting of a judgment which is not simply an abstract exercise and philosophical about the meaning of the Constitution or the law.
And this is not insignificant when we see that the Supreme Court regularly and casually evacuates the 150 or 200 pages of a judgment of first instance argued in depth to side with an appeal court which reverses without much motivation. This was the case, for example, in the case Veasey vs. Perry, in 2015: Texas had passed a law supposedly intended to fight voter fraud but which discriminates against African Americans and Hispanics. The trial court prohibited the implementation of the provisions because of their discriminatory nature. But the Fifth Circuit Court of Appeals blocked this ban, and the Supreme Court, seized in emergency proceedings, sided with the position of the Court of Appeals. Paying no attention to the arguments developed in the first instance.
Perhaps the new judge, if confirmed, can convince some of her colleagues that a trial judgment is a big job that allows for in-depth analysis and should be taken into account.
Appointments and confirmations by the Senate have become central issues. The Court's decisions affect all areas of political, social and economic life and the judges, appointed for life, are chosen at younger and younger ages. Since 1972, only two out of 17 judges had been over the age of 55 on the day of their confirmation, Ruth Baren Ginsburg and Sonia Sotomayor. Candidates today are increasingly being nominated before the age of 50, such as John Roberts, Elena Kagan, Neil Gorsuch or Amy Coney Barrett.
Prior to 1970, the average tenure of a supreme justice was less than 15 years. Since then, it has been more than 25 years old. Due to increased life expectancy and their young age at the time of their accession to the supreme court, the “new” ones will undoubtedly be able to sit for 35 years, extending the ideological preferences of the presidents who appointed them.
Clarence Thomas, the second black on the court, was 43 when he was appointed by George H. Bush. He has been sitting for thirty years and he will not leave until a Republican president is elected. Because, given the stakes and the polarization, it is now unthinkable that a judge leaves the Court (unless he dies) before a president of the right ideological color reaches the White House and can therefore replaced by a successor with the same vision as him.
A court that has become very powerful
Over time, the Court has granted itself various powers, including the central power to rule on the constitutionality of the laws and acts of the President, from the decision Marbury v. Madison of 1803. His power to judicial review is wide, which intervenes a posteriori on the laws but also the decrees of the president or those issued by federal agencies, which makes it a central player. Especially since Congress, paralyzed by partisan blockage, is nowadays incapable of adopting the slightest law, whether on immigration, police reform or the protection of the right to vote.
This leads presidents to act more and more by way of decrees. However, these are subject to the control of the judiciary, which has become a “super-legislator”, which is not its role and further increases the stakes.
Over time, the Court has also obtained permission from Congress to allow it to choose the cases it hears (between 50 and 70 each year), which allows various pressure groups, for example those who advocate the carrying of arms unlimited or against the right to abortion, to set up legal strategies to obtain the result they want.
Consequently, the choice of a judge has become the most important act of a presidency. By appointing three candidates to the Supreme Court, Donald Trump has managed to change the face and philosophy of the latter for at least a generation.
A liberated court...
This is all the more true as the current Court frees itself from the traditionally accepted rules and criteria which limited its role. In principle, the Court only intervenes if it is a question of standardizing the jurisprudence when there is a conflict of interpretation between several regional courts of appeal (short circuits), the so-called "split circuit". But the Court no longer respects this restraint advocated by the conservatives when the majority in the Court was progressive.
Same attitude towards the rule of precedent (stare decision), the basis of the right to common law, under which lower courts are required to abide by the Court's case law. And the Court has every interest in respecting its own precedents and not making too many unjustified reversals, unless it weakens its credibility and the legal and political weight of its decisions.
However, there is a majority of five judges at the Court determined to put an end to precedents that do not correspond to the political priorities of their camp. Whatever the cost to the Court's credibility. We are talking here about the right to abortion, the mechanisms for protecting the right to vote against discrimination or, more insidious but just as dangerous, the jurisprudential doctrine Chevron which validates the delegations of powers to federal agencies such as the EPA (environmental protection agency) or the FDA (drug agency). U-turns on these issues would mean a profound challenge to democracy and the administrative state hated by Republicans for its consumer, worker and climate protection regulations.
Whatever happens, we can expect a well-orchestrated ballet, which has become a classic since the rejection of Robert Bork's candidacy by the Democrats in 1987. We know that we will learn nothing new about the position of the candidate during her hearing before the Senate Judiciary Committee. The Democrats, through accommodating questions, will try to make his job easier. Republicans will try to trap her and cast her as a leftist who will put her personal preferences ahead of the rule of law.
The three Republican senators who sit on the Judiciary Committee will want to be noticed and increase their visibility in view of their possible candidacy for the presidency of 2024. We must therefore expect attacks in order. But the party establishment should not block the procedure (which it could do by refusing to sit because it would prevent the quorum needed to endorse the nomination). But all is not won for the candidate because it is nevertheless necessary that all 50 Democratic senators vote for her. All it takes is a dissident or a sick person for his candidacy to fail...
Anne E. Deysine, Professor Emeritus jurist and Americanist, specialist United States, political, social and legal issues (Supreme Court), Paris Nanterre University - Paris Lumières University
Image credit: Creative Commons / Wikimedia
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