WASHINGTON – President Joe Biden will name Judge Ketanji Brown Jackson to the Supreme Court, replacing retiring Associate Justice Stephen Breyer with a jurist who would become the first Black woman to serve on the nation’s highest court in its 233-year history, according to a source familiar with the process.
The source spoke on the condition of anonymity to discuss details of the internal process.
Jackson, a 51-year-old federal appeals court judge in Washington, D.C., has long been considered a frontrunner for the president’s first Supreme Court nomination. Because she was recently confirmed by the Senate, her selection may be a signal the White House is aiming for a bipartisan process – or, at the very least, a less messy fight than has been the case for recent nominees.
Biden’s nomination comes as the Supreme Court’s 6-3 conservative majority appears to be moving to the right in high-profile decisions. The court has signaled its intention tochip away at abortion rights in a challenge to the 1973 Roe v. Wade decision and make it harder for local governments to regulate handguns. It has announced it will revisit the use of race in university admissions for the first time since 2016.
Even though Jackson’s ascension will not change the court’s ideological balance, her nomination is nevertheless historic – marking the first time a Black woman has been selected for an institution that throughout its history has seated only seven justices who were not white men. Biden first pledged to name a Black woman just before the 2020 presidential primary in South Carolina.
The current Supreme Court includes two white women, Associate Justices Elena Kagan and Amy Coney Barrett; a Hispanic woman, Associate Justice Sonia Sotomayor; and a Black man, Associate Justice Clarence Thomas. Assuming Biden’s nominee is confirmed, it would be the first time two African Americans are serving on the court.
It would also mark the first time four women are seated on the high court together – including all three members of the court’s liberal bloc.
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Biden’s nomination kicks off a flurry of posturing in the Senate and fundraising by outside groups hoping to influence the perception of Jackson in the runup to her Senate Judiciary Committee confirmation hearing, which most experts predict will start in about a month. Both Biden and Vice President Kamala Harris have been making initial calls to senators from both parties in anticipation of the nominee’s announcement.
The White House hopes to avoid the kind of partisan brawl that accompanied the most recent Supreme Court nominations during President Donald Trump’s administration. In 2018, one of those nominees, Associate Justice Brett Kavanaugh, was nearly torpedoed by decades-old allegations of sexual assault – which he denied. Associate Justice Amy Coney Barrett’s nomination two years later was rushed through the Senate to ensure she could be confirmed before the 2020 presidential election – angering Democrats.
Some Democrats are still seething over Senate Republican leader Mitch McConnell’s decision to deny a hearing or a vote to President Barack Obama’s final Supreme Court nominee, Merrick Garland, when the GOP controlled the chamber in 2016. That delay allowed Trump to nominate Associate Justice Neil Gorsuch to the seat previously held by Associate Justice Antonin Scalia, who had died eight months before the election.
Biden named Garland attorney general in 2020.
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Jackson’s biography includes many selling points for the White House, not the least of which is that the Harvard Law grad has already won Senate confirmation three times, most recently last summer when Biden named her to the U.S. Court of Appeals for the D.C. Circuit. A former federal public defender, Jackson clerked for Breyer in the 1999-2000 term. At 51, she is young enough to serve on the high court for decades.
Jackson for the most part breezed through her confirmation last year and picked up three Republican votes along the way, Sens. Lindsey Graham of South Carolina, Lisa Murkowski of Alaska and Susan Collins of Maine. During that process some Republicans objected to the fact that she dodged a question from Sen. Ted Cruz, R-Texas, about whether she embraced the notion of a “living Constitution,” the idea that judges may adapt their reading of the founding document to the changing times.
Breyer has been among the court’s most outspoken proponents of the concept of a “living constitution.” Any of Biden’s nominees likely would have faced questions about it.
Jackson previously served on the U.S. District Court for the District of Columbia and Republicans have criticized some of her earlier rulings, including a 2019 opinion in which Jackson dismissed an effort by the Trump administration to speed deportations. That opinion was reversed on appeal and the case was stayed after Biden signed an order calling for a review of many of Trump’s immigration policies.
That same year, Jackson ruled that Trump’s former White House counsel, Don McGahn, had to testify during what was then a congressional impeachment inquiry into the president’s call with Ukrainian President Volodymyr Zelenskyy. Trump was impeached over that interaction, in which he pressured Zelenskyy to investigate Biden, but was acquitted in the Senate. The Biden administration later settled the case.
Raised in Miami, Jackson is related by marriage to former Republican House Speaker Paul Ryan. Jackson’s husband is the twin brother of Ryan’s brother-in-law. The former Wisconsin lawmaker testified on Jackson’s behalf when she was nominated to the federal district court in 2012.
Republicans may have little leverage to stop Biden’s nominee, but they may be able to slow the process down. Recent Supreme Court confirmations have taken about two months from the time a president names his nominee to the Senate’s final vote. In Barrett’s case, that timeline was cut in half to 27 days.
