Last week, President Biden announced the nomination of Judge Ketanji Brown Jackson to join the U.S. Supreme Court and take the seat soon to be vacated by Justice Stephen Breyer. Daniel Medwed, Northeastern Law professor and GBH News legal analyst, joined hosts Paris Alston and Jeremy Sigel on Morning Edition to talk about the significance of this nomination and how it could affect the trajectory of the court. This transcript has been edited for clarity and length.
Jeremy Siegel: Daniel, let's start with Judge Jackson's background. Even though she grew up in Miami, she has strong ties to the Boston area.
Daniel Medwed: That's right. She's a graduate of Harvard College and Harvard Law School, where she was on the Law Review. And then she cut her teeth as a young lawyer, as a clerk for two Boston-based judges, first Patti Saris, a U.S. District Court judge, and later an appeals Judge Bruce Selya, before she became a clerk, of course, for Justice Stephen Breyer during one of his early terms on the U.S. Supreme Court. And Justice Breyer, of course, also has Boston ties. He's a former federal judge here in town and has retained a residence in Cambridge. So maybe we can consider this a Beantown seat, that we should always have a Bostonian of some sort on the Supreme Court.
Paris Alston: And Daniel, how do you think that those early clerkship experiences, especially the year she spent under Justice Breyer, might influence her decision-making if she does join the court?
Medwed: Well, absolutely. On the one hand, as we all know, those early formative experiences in one's professional life can have a lasting impact and can really shape your career. And I think Judge Jackson is no exception. Like Justice Breyer, she seems to have a very even-keeled temperament and attention to detail and a very pragmatic jurisprudence. But on the other hand, she's had a very different lived experience, and I hope and imagine that that will inform her jurisprudence, her approach to the job and really alter the dynamic of the court.
If she's confirmed she would be the first Black woman on the court in its 230-year-plus history and only the third Black justice after Thurgood Marshall and Clarence Thomas. What's more, she would be the first justice with ample criminal defense experience since at least Thurgood Marshall, who retired more than 30 years ago in 1991. Among other things, she represented detainees at Guantanamo Bay. She handled appeals on behalf of impoverished criminal defendants, and she served on the U.S. Sentencing Commission. I think that will bring a measure of empathy to the criminal defense cases, the Fourth and Fifth Amendment cases that are really the grist for the Supreme Court docket.
Alston: Let's talk more about that because of course, there's a lot to say about representation with her potentially being the first Black woman on the court. But she would also be the first public defender, digging more specifically into her criminal defense career. What would that mean for the Supreme Court?
Medwed: I think that's a fascinating question, and I should acknowledge I'm a former public defender, so I'm especially excited about the prospect of her joining the court. I think it will add a number of things, not just empathy for criminal defendants, but also an underlying sense of justice, that the hallmark of a civilized society is the extent to which we protect the least fortunate among us, including the most reviled among us people suspected of terrorism or other egregious acts. And that type of empathy and appreciation for the rights of the individual could be a really effective foil in what is now a very highly charged political battle on the court, where there's a small liberal minority and a much larger conservative majority. So I think it will have a tremendous effect on a number of levels.
Siegel: Daniel, Judge Jackson has been a federal judge since 2013, so we have nearly a decade of a track record to look at here. What does her record reveal?
Medwed: Well, that's right. She became a federal trial judge in 2013, served in that role for eight years before she was elevated to the D.C. Circuit Court of Appeals just last year, which is considered a launching pad, so to speak, for future Supreme Court justices. Because she's been on the appellate bench for such a short period of time, the pickings are really slim in terms of looking at her appeals decisions, though she did recently write an opinion where she sided with federal workers in a labor dispute over bargaining rights.
Her trial record, of course, is much more extensive. We have eight years of opinions to scour through, and that record is characterized by a series of high-profile rulings in Trump-era cases. The one that might get a lot of attention during the confirmation hearings concerns a ruling about executive privilege, where she was very skeptical of the Trump administration's claims that they deserve a privilege and shouldn't be forced to testify in various congressional hearings. And she had this very powerful quote that presidents are not kings. I envision that the Republicans may capitalize on that zinger during the confirmation hearings.
"That type of empathy and appreciation for the rights of the individual could be a really effective foil in what is now a very highly charged political battle on the court."-Daniel Medwed, GBH News Legal Analyst
Siegel: Given that that could draw some scrutiny during our confirmation hearings and given how controversial confirmation hearings have been overall over the past few years, looking back to the nomination of Merrick Garland years ago, what are her prospects during that hearing? Is she likely to be confirmed?
Medwed: I think she is likely to be confirmed for the simple reason that back in 2017, during the confirmation hearings for Neil Gorsuch, the Republicans use the so-called nuclear option to get rid of the supreme majority rule for appointing Supreme Court justices. You used to have to have 60 votes in order to get a Supreme Court justice through the Senate. Now it's just a bare majority. And because the Democrats have that razor thin majority by virtue of Vice President Kamala Harris being able to cast the deciding vote, assuming that the Democrats stick together, as I imagine they will, she will be confirmed.
But it's going to be pure political theater, where I imagine Republicans will talk about her Trump-era rulings, her background handling the Guantanamo Bay cases and so on. To be fair, some Republicans, three in fact — Susan Collins, Lisa Murkowski and Lindsey Graham — all voted to confirm her when she was appointed to the Circuit Court of Appeals last year. I'm curious to see whether they will do so again.
Alston: Even if Jackson is confirmed, though, it's really unlikely to shift the balance of power on the court, right? I mean, is this one liberal leaning judge replacing another, and there's still a conservative majority of six to three?
Medwed: You're absolutely right, Paris, but I still think it's important. And here's why. First, in the short term, her place on the court could affect the types of cases that the Supreme Court hears. It only takes four of the nine justices to grant review of a case to issue what's called a writ of certiorari and the court gets between 7,000 and 8,000 of those requests a year and only picks about 80. In the past, in 2009, at least about a third of those cases involved criminal procedure issues, Fourth and Fifth Amendment issues and related topics. That number dwindled over the next decade to the point that by 2019, only about 15 percent of the cases on the Supreme Court docket comprised criminal law issues.
I think with Judge Jackson becoming Justice Jackson and given her practical experience and her background in the field, we might see more criminal procedure cases. Second, looking at the long term, she is quite young. She's only 51. And the balance of power of the court is sure to ebb and flow over time. So I think that she will make both a short term and a long term impact.