Smooth Sailing Ahead? Why Ketanji Brown Jackson Will Probably Be Confirmed With Ease
The United States Supreme Court. Photo by DB King.
The impending retirement of Justice Stephen Breyer has set the stage for the first Supreme Court nomination fight of the Biden administration. Although President Biden only recently announced his nomination of U.S. Circuit Judge Ketanji Brown Jackson, and confirmation hearings have only just begun, it is not too early to take a look into the future and anticipate how the process will unfold. The outlook for Biden’s nominee is surprisingly positive. Although recent Supreme Court nominations—from President Obama’s ill-fated nomination of Merrick Garland in 2016 to President Trump’s successful nomination of Amy Coney Barrett in 2020—have been highly acrimonious, many signs point to a different story for Judge Jackson. The current politics of the Senate and Supreme Court, coupled with Judge Jackson’s historic nomination and stellar legal credentials, will likely pave the way for a smooth confirmation process and successfully plant her on the bench.
The power of a Senate majority in Supreme Court nominations is the strongest supporting factor for Judge Jackson’s success. Many major pieces of legislation, such as voting rights bills, have been blocked by the Senate’s filibuster, which requires that sixty senators agree to end debate on a bill before proceeding to a final vote. However, that roadblock does not exist for Supreme Court nominees. Owing to changes in Senate rules pushed through by Republicans in their efforts to confirm Justice Neil Gorsuch in 2017, Supreme Court nominations cannot be blocked by a minority party through the filibuster. As a result, although there are likely more than forty Republican senators who would oppose any Biden nominee, they cannot block the process from the sidelines. Given these rules, only a simple majority is needed to confirm a nominee; Senate Democrats possess that total with their own fifty-member caucus and Vice President Kamala Harris, who is available to break ties in their favor. This partisan make-up of the Senate and recent changes in the chamber’s rules for Supreme Court nominees allow Senate Democrats to muscle a nominee to confirmation using their votes alone, assuming they can keep their caucus coordinated.
That coordination would seem to be a challenge. The bare Democratic majority means that the opposition of any one senator can derail the entire process. Such a situation would not be unfamiliar, either, as the moderate senators Joe Manchin of West Virginia and Kyrsten Sinema of Arizona have repeatedly been willing to buck the party line on important issues. The two senators have consistently opposed measures put forward with purely Democratic support, from the Build Back Better budget reconciliation social policy package to efforts to carve out an exception to filibuster rules for voting rights legislation. That theme only reaches so far, though. When it comes to judicial nominations, the Senate Democratic caucus has consistently moved in lockstep. Under Democratic control, the Senate has moved at a rapid pace to leave President Biden’s mark on the judiciary, already processing more than forty nominees for lower court appointments. Although not every senator is present for every confirmation vote, no dissenting vote has been cast by a Democratic senator on any of these judicial nominations, not even by senators Manchin and Sinema. If this pattern of Democratic unity in support of President Biden’s judicial nominees continues into the high-profile arena of a Supreme Court nomination, there is little chance for Democratic division to derail a successful confirmation.
But a Democrats-only confirmation vote may not be necessary regardless. Although partisan polarization is a powerful force in Washington today and bipartisanship on significant matters seems increasingly scarce, there remains the strong possibility that Judge Jackson will draw some Republican support. In President Biden’s previous lower court nominations, three Republican senators have often joined the Democrats to vote in favor: Senator Susan Collins of Maine, Senator Lisa Murkowski of Alaska, and Senator Lindsey Graham of South Carolina. In the confirmation votes that these three senators have participated in, they have each supported the nominee in more than 80 percent of cases. These swing-voting Republican senators are a rare breed, though, considering that the Republican senators with the next-most favorable record of supporting President Biden’s nominees, Senator Thom Tillis of North Carolina and Senator Chuck Grassley of Iowa, have each only voted in favor of 36 percent of the nominees whose confirmation votes they participated in. The bipartisan aptitudes of these senators may be tested in a high-profile Supreme Court confirmation vote, but President Biden himself anticipates his nominee receiving some Republican support, which would grant Democratic leadership some breathing room and raises the chances for a smoother process.
Democrats’ united record and the real prospect of some bipartisan votes are encouraging signs for Judge Jackson’s nomination, but hazards to the process still abound. Even without any defections, the Democratic majority is not immune to cracking should a senator be unable to participate in the process. Fears of this prospect were recently made much more real when Senator Ben Ray Luján of New Mexico suffered a stroke, keeping him away from Senate business as he recovers. Personal health is an important matter for everyone, but senators’ personal health concerns can affect the confirmation process by toppling the marginal Democratic majority. The confirmation process for Judge Jackson will likely take a considerable amount of time to unfold, so Senator Luján should be back to the Senate in time to cast his vote, but the risk of another senator encountering a health problem threatens the reliability of simple Democratic solidarity. On top of this, the breathing room provided by swing-voting Republican senators could shrink as the nomination process proceeds. Senators Collins and Murkowski have not revealed much about their opinions, but Senator Graham has voiced some dissatisfaction with President Biden’s pick. He would have preferred that the president nominate Judge J. Michelle Childs from his home state of South Carolina, and attacked Democrats for not picking her instead of Judge Jackson on the first day of confirmation hearings. Congressional calculus still reliably favors Judge Jackson’s confirmation—neither Senator Graham’s dissatisfaction or Senator Lujan’s illness are likely to impact the vote at large—but uncertainty is embedded within the confirmation process: it will not be over until it is over.
Barring any unexpected changes in the Senate’s partisan composition, cracks in Democratic unity, or moderate senators’ goodwill drying up, it is likely that Judge Jackson will meet a favorable Senate when the time for a confirmation vote comes. Her identity and background, both personal and professional, bolster this probability and make her a nominee Republicans will struggle to resist.
Judge Ketanji Brown Jackson is currently a member of the Circuit Court of Appeals for the D.C. Circuit. Membership on that particular circuit court is significant, as the court hears many cases involving the federal government that pose major constitutional questions and is often considered to be the second most powerful court in the nation, behind only the Supreme Court itself. Membership on the court is sometimes a stepping stone toward Supreme Court membership: many current and former justices and nominees have come from that court, including Chief Justice John Roberts, Associate Justices Brett Kavanaugh, Antonin Scalia, and Ruth Bader Ginsburg, as well as now-Attorney General Merrick Garland. Aside from her professional record, which also includes two degrees from Harvard and a clerkship with Justice Breyer, Judge Jackson’s record in Congress also helps her case. She has already been approved by the Senate twice: once in 2013 when President Obama nominated her to a district court position, and again in 2021 when President Biden nominated her for her current position. In that confirmation process, Judge Jackson was confirmed by a 53-44 vote, with support from all three of the Republican swing-voting senators mentioned above. With her professional history and recent success in the Senate, Judge Jackson’s nomination would be hard to defeat, as she fits the archetypal Supreme Court justice’s legal career path.
Judge Jackson’s presence on the Supreme Court will not only shape its outlook for a generation, but also impact the politics of the confirmation process. Her nomination intersects with a fraught partisan divide on matters relating to race, which will impact how Republican senators approach the confirmation process. During the 2020 presidential election, then-candidate Biden pledged to nominate a Black woman to the Supreme Court, and he has followed through on that promise by nominating Judge Jackson. No Black woman has ever been on the Supreme Court or even nominated to it, so Judge Jackson is already breaking barriers that have long stood between Black women and prominent positions in the American judiciary. Senator Collins, one of the crucial swing-voting Republican senators, recently noted that although she wished that race had not been such a large determinant of who President Biden nominated, there are many Black women suitable for the job. In her view, it would be difficult for Republicans to fight against a well-qualified candidate, especially since Democrats have had success in portraying Republicans as opponents to racial progress. When faced with this political dynamic and risking energizing Democratic voters in the upcoming midterm elections, Republican senators may opt for a less confrontational confirmation strategy when faced with Judge Jackson’s strong qualifications and powerful personal story.
A final factor that will likely lower the temperature is the fact that the stakes are lower as regards the Supreme Court’s ideological composition with this confirmation process compared to other ones in recent years. Justice Breyer is solidly a member of the court’s left-leaning faction along with Justices Kagan and Sotomayor. Replacing him with another left-leaning justice will not fundamentally change the balance of the court. Much of the acrimony that recent confirmation fights have seen is the result of their potential to shift the court, raising the political stakes and the heat of public discourse. Merrick Garland’s nomination to the court to replace the late Justice Antonin Scalia would have replaced a conservative lion with a relative moderate. Before sexual assault allegations emerged against the conservative Brett Kavanaugh, his nomination was already a hot topic as he replaced Justice Anthony Kennedy, a swing-voting moderate. Perhaps most ideologically consequential of the recent confirmation fights was the most recent, with the conservative Justice Amy Coney Barrett replacing the iconically liberal late Justice Ruth Bader Ginsburg. All three of those confirmation fights had major implications for the immediate ideological balance of the court, while this one does not. Nonetheless, Judge Jackson’s confirmation will have major impacts in the long run. Not only will she immediately bring a fresh perspective to the court with her experience as a criminal defense lawyer, but at the current age of fifty one, she will be a bastion of the court’s liberal wing for decades. Still, the lack of an immediate impact on the court’s balance will prevent the level of outcry that recent nominees have faced, paving the way for a more cordial process.
With a Democratic Senate in lockstep for judicial nominees, a handful of amenable Republican senators, no filibuster for Supreme Court nominees, strong nominee credentials, the mollifying factor of being the first Black woman ever nominated, low stakes for the ideological composition of the court, and no surprise changes to the make-up of the Senate, Judge Jackson will likely experience an unusually smooth confirmation process. After years of high-stakes, high-drama confirmation fights, this is something to look forward to. Nonetheless, the American people should not take this as a signal for more peaceful nominations going into the future. The stars have aligned for this confirmation. All it takes is a divided government, a more controversial nominee, or a potential swing of the court’s prevailing ideology to send future nominations back into senatorial chaos.
David Eckl (CC’23) is a staff writer at CPR studying political science and East Asian studies. When not working on Chinese or reading about international relations in a library, he can be found rearranging his bookshelf or cooking late at night.