How Will Biden’s Nominee Change The Supreme Court?
President Joe Biden has announced his nomination of Judge Ketanji Brown Jackson to the United States Supreme Court. His choice is in line with his promise to replace retiring Justice Stephen G. Breyer with a Black woman.
Texas A&M Today spoke with Meg Penrose, a professor at the Texas A&M University School of Law, about the judicial appointment process and the modern history of appointing women and people of color to the Supreme Court.
What is the process for nominating U.S. Supreme Court justices?
“Pursuant to Article II of the Constitution, the president nominates an individual to fill the seat of a retiring justice or one who has died. There are no Constitutional requirements to be a Supreme Court justice. Unlike members of Congress and the president (all of whom have a minimum age requirement), there is no age requirement. There is no training or educational requirement – justices do not have to be lawyers. And there is no citizenship requirement. The framers of the Constitution left the nominating decision entirely up to the president (Article II, Section 2). The most common factor is that a nominee is usually selected from the president’s own political party. Politics are expected to be the dominant feature.
The Constitution, however, places the duty to actually confirm a nominee solely with the U.S. Senate. A simple majority vote is all that is needed. The last three nominees have gotten 54 (Neil M. Gorsuch), 50 (Brett M. Kavanaugh), and 52 (Amy Coney Barrett) votes for confirmation.”
President Joe Biden promised his pick would be a Black woman. Of the women who have served on the Supreme Court, how many were nominated as a result of campaign promises or “set-aside” seats?
”The current nominee will be the third of six female Supreme Court nominees to have a gender requirement pre-announced. Two Republican presidents have promised to fill a seat with a woman. President Ronald Reagan made a 1980 campaign promise and President Donald Trump promised to fill Justice Ruth Bader Ginsburg’s seat with a woman. And, while President George W. Bush did not actually fill Justice Sandra Day O’Connor’s seat with a female, his initial appointment was a woman (Harriet Miers). President Biden’s promise is the first such promise made by a Democrat.
Of the past 15 Supreme Court appointments – counting appointments since Justice O’Connor was nominated in 1981 – there have been two people of color and five women (including Justice O’Connor). During that same time, there have been 13 white justices appointed and 10 men appointed. Seeing a shift in these numbers is important to ensuring that members of the court more accurately reflect society’s makeup. Since 1981, women still make up what President Jimmy Carter called ‘one at a time curiosities.’
Of the past 15 appointments (13 associate justices and two chief justices), Republican presidents have appointed 11 justices, including the two most recent chief justices. Of these Republican appointments, only two have been women. Democratic presidents have appointed four justices, two have been women.
In other words, Democratic presidents have shown greater willingness to appoint women. With Biden’s nomination, he seeks to move the Democratic presidents’ 50 percent record of appointing women to the Supreme Court to 60 percent. In contrast, Republican presidents have appointed women 18 percent of the time – both times to fulfill a promise to seat a woman.
Republican presidents have appointed one person of color – Clarence Thomas. Democratic presidents do not have a much better record, having appointed two individuals (Justice Thurgood Marshall and Justice Sonia Sotomayor). This nominee will be the third Democratic appointment of a person of color. Of the four individuals of color appointed to the Supreme Court, Democratic presidents will have been responsible for 75 percent of those appointments.
Of 115 justices, five have been women and three have been people of color. This nominee will barely change these numbers. But her appointment as the 116th Justice will provide important race and gender diversity on the modern court.”
The replacement for retiring Justice Breyer won’t shift the ideological balance of the court. But if Biden successfully installs a Black woman to the seat, what will be the significance of that appointment?
”A court that more fully reflects America – one with race, gender and religious diversity – will hopefully produce legal opinions that more fully reflect the diverse opinions in our country.
Nominating a Black woman will have great significance for both race and gender. This nominee will be only the fourth person of color to sit on our Supreme Court. This nominee will be the sixth woman to sit on our Supreme Court. And, while there have been two Black justices sit on the court, this will be the first Black female. There is value in having children see that our court looks like the society they live in. Regardless of race, gender or religion, a child should be able to look at our justices and see themselves sitting on the court someday. Judge Jackson wrote in her high school yearbook that she wanted ‘to go to law school and eventually have a judicial appointment.’
Women currently make up roughly 51 percent of the U.S. population. We have never had more than three women on the Supreme Court at one time. This shift – giving us four women – moves us closer to reflecting the actual population in our country. In addition, women comprise over 54 percent of all law students. Ensuring that the court is populated with qualified women is a natural consequence of women continuing to enter the legal profession.”
Supreme Court nominations, especially in recent history, are often highly scrutinized and politicized. What, if any, pushback do you expect we could see during the confirmation process?
”Modern confirmation hearings are pure political theater. Currently, Democrats hold a one-vote advantage in the Senate – with Vice President Kamala Harris constituting the 51st tie-breaking vote.
I do not expect too much pushback, as the finalist had been vetted previously. Judge Ketanji Brown Jackson was confirmed to the D.C. Court of Appeals (the most common ‘feeder’ position for modern Supreme Court nominees) on June 14, 2021, by a vote of 53 to 44. I would also expect that some of the female Republican senators might lend their support to the nominee. Senators Susan Collins, Lindsey Graham, and Lisa Murkowski all voted for Judge Jackson’s elevation from the District Court to the D.C. Court of Appeals.”
If confirmed, Judge Jackson will be the first former public defender to join the court. This runs counter to the large number of former prosecutors appointed to the federal judiciary.
Judge Jackson also share something in common with five current members of the court. Like Justices John G. Roberts, Elena Kagan, Gorsuch, Kavanaugh and Barrett, Judge Jackson previously served as a judicial law clerk on the United States Supreme Court. This would bring the total number of former Supreme Court law clerks to six – a shift in modern appointments. And, like Justices Roberts and Kavanaugh, Judge Jackson would be replacing the very judge she clerked for, Justice Breyer.
Jackson, having served as a federal judge for nearly nine years, brings more past judicial experience to her nomination than Justices Roberts (two years), Barrett (three years) and Thomas (1.5 years) combined. She also comes to this position with more past judicial experience than Justices Antonin Scalia (four years) and William Rehnquist (no past judicial experience).
In comparing Judge Jackson’s past judicial experience to the other female nominees, she ranks third among females: At the top is Justice Sotomayor (11 years on federal appellate court, six years on federal trial court), Justice Ginsburg (13 years on federal appellate court), Judge Jackson (nearly nine years – eight on federal trial court and nearly one on federal appellate court), Justice O’Connor (almost two years state appellate, five years state trial), Justice Barrett (three years federal appellate court), and Justice Kagan (no past judicial experience).