February 25, 2022
The Committee for Justice released the following statement by its president, Curt Levey, on the nomination of Ketanji Brown Jackson to the Supreme Court:
In nominating Judge Jackson to the Supreme Court, President Biden has caved to the left wing of his party, as he has done so often throughout his presidency and as he did when handling judicial nominees on the Senate Judiciary Committee. Biden has given in to the demands of groups on the far left, who made it clear they wanted Justice Breyer replaced by Judge Jackson, whose liberal judicial activism, resistance to President Trump, and charged rhetoric in opinions has made her a darling of progressives.
President Biden has promised moderation and unity since he announced his campaign and even pretended to be looking for a Supreme Court nominee who could get GOP support. Instead, Biden chose the more divisive of the potential nominees on his short list of black women. He chose to listen to Demand Justice instead of the recommendations of Democratic Congressman Jim Clyburn and of Republicans who signaled that they could support moderate liberals on the short list, specifically Judge Michelle Childs—Clyburn’s pick—and Judge Leondra Kruger.
Biden’s choice might be understandable if Judge Jackson were otherwise the best pick from the short list. But that’s not the case. Despite severely narrowing his choices demographically—excluding more than 90% of the legal profession at the start—Biden’s short list contained in Childs and Kruger two stellar choices that would have attracted many GOP votes.
Instead, Biden chose a Supreme Court nominee whose opinion writing was found, by legal writing expert Ross Guberman, to be less impressive than Judge Kruger’s and who has a propensity for being reversed on appeal, perhaps because her opinions often stretch the law to reach progressive outcomes.
Moreover, if President Biden were looking for real diversity on the Supreme Court, Judge Childs would have been an obvious pick. While Jackson went to Harvard for both college and law school, Childs attended a college and law school that would be welcome additions to the Ivy League resumes of most of the Court.
That is not the only reason to doubt the sincerity of President Biden’s rhetoric about diversifying the Supreme Court. Biden has a long record of showing hostility to minority and female judicial nominees who stray from the Left’s insistence that being an authentic minority means being progressive.
That record of hostility dates back to when Biden led the charge, as chairman of the Senate Judiciary Committee, to defeat Clarence Thomas’s nomination to the Court. That record expanded as Biden voted against many of the women and minorities nominated by Republican presidents. Despite now calling the filibuster a relic of Jim Crow, Biden’s sordid record includes voting to filibuster DC Circuit nominees Miguel Estrada and Janice Rogers Brown.
Many believe that, but for those filibusters, Estrada and Brown might have gone on to be the first Hispanic and first black female Supreme Court justices.
Of course, it is not Judge Jackson’s fault that Biden is a hypocrite about diversity and that he has made this nomination about race and gender. Nonetheless, at a time when a major affirmative action case is on the Supreme Court’s docket and our nation is debating whether equality or equity should be the governing anti-discrimination standard, we hope that senators will ask Judge Jackson about her views on equity, racial preferences, disparate impact, and the like.