Consider This from NPR - Ketanji Brown Jackson Is The First Black Woman Nominated To The Supreme Court

Episode Date: February 25, 2022

Ketanji Brown Jackson's nomination to the U.S. Supreme Court fulfills a promise President Biden made while running for office: to nominate the first Black woman for the highest court. Critics said he was prioritizing identity over qualifications, but many have praised Jackson for being well equipped for what could be a historic appointment. Tomiko Brown-Nagin, dean of the Harvard Radcliffe Institute, wrote a book about the first Black woman to ever become a federal judge, Constance Baker Motley. She explains how that, and much more, paved the way for this nomination. And NPR correspondent Nina Totenberg reports on Jackson's career and her path to the president's top pick. In participating regions, you'll also hear a local news segment to help you make sense of what's going on in your community.Email us at [e-mail] more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

When Joe Biden was running for president, he promised to nominate the first black woman to the Supreme Court should there be a vacancy. Today, as we watch freedom and liberty under attack abroad, I'm here to fulfill my responsibilities under the Constitution to preserve freedom and liberty. Well, on Friday afternoon, he made good on that promise by nominating Judge Katonji Brown-Jackson to fill the seat that will be vacated by retiring Justice Stephen Breyer later this year. For too long, our government, our courts haven't looked like America. And I believe it's time that we have a court that reflects the full talents and greatness of our nation with a nominee of extraordinary qualifications. Thank you very much, Mr. President. I am truly humbled by the extraordinary honor of this nomination. In her remarks, Jackson acknowledged the judges who paved the way for her, including

Justice Breyer, who she used to clerk for. Justice Breyer, the members of the Senate will decide if I fill your seat, but please know that I could never fill your shoes. And she acknowledged the first Black woman to ever become a federal judge, Constance Baker Motley. We were born exactly 49 years to the day apart. Today, I proudly stand on Judge Motley's shoulders, sharing not only her birthday, but also her steadfast and courageous commitment to equal justice under law. As she noted, Jackson will now face the Senate for confirmation. With a Democratic majority, she doesn't need any Republican votes. And a split on party lines is a strong possibility as the process has become increasingly partisan. When she was confirmed to the D.C. Circuit Court of Appeals this past summer, she got three votes from across the aisle. And she had even more bipartisan support when she was first nominated to be a federal judge. I know she's clearly qualified, but it bears repeating just how qualified she is.

That's former Republican Congressman Paul Ryan introducing Jackson at her confirmation hearing back in 2012. The two are distant relatives through marriage. Our politics may differ, but my praise for Katonji's intellect, for her character, for her integrity, it's unequivocal. The former House speaker tweeted his support for Jackson again on Friday. But current Republican leadership, including Senate Minority Leader Mitch McConnell, have already signaled their disapproval. And ever since Biden announced his intention to nominate a Black woman, critics have accused the president of choosing identity over qualifications. I think that is a false binary. Tomiko Brown-Nagin is dean of the Harvard Radcliffe Institute.

One can both recognize the value of the appointment of historically excluded individuals to these positions, and also promote excellence. And in Judge Jackson, one certainly has both. Consider this. As the first Black woman nominated to the Supreme Court, Katonji Brown Jackson has made history. Coming up, we'll look at Jackson's journey to this day

and at the people who paved the way for this moment. From NPR, I'm Ari Shapiro. It's Friday, February 25th. It's Consider This from NPR. LaDoris Cordell knows what it's like to be the first Black woman on the bench. I was asked pointedly when I was appointed, well, you know, maybe you just got appointed because you're Black.

Back in 1982, Cordell became the first Black female judge in Northern California. And my response is, I would rather be appointed because I'm Black than not be appointed because I'm Black. And she says it's taken too long for a Black woman justice to be seated on the Supreme Court. To be specific, it's been 223 years. In that time, there have been 115 justices. Only five have been women, and only three have been people of color. Cordell says while she believes deeply in the founding principles of America,

Those principles were promulgated by white-propertied men. They did not intend those principles to apply to women, to apply to poor people, or to apply to people of color. When you see someone after an entire life of never seeing anyone who looks like you, it transforms your idea of the possibilities of what that institution could be and of what you as a person can be. Margaret Russell, who is Black and Japanese American, says meeting Cordell helped guide her career. Doris Cordell is, she's the first Black judge I ever met. Russell now teaches law at Santa Clara University. And she's clear-eyed about what Katonji Brown Jackson will be up against if confirmed. She will enter a court with a conservative supermajority that seems intent on overturning decades of precedent on everything from reproductive rights to racial justice.

In terms of actually affecting decisions in these momentous cases coming up, I think it's not going to happen. Someone else who understands the significance of this moment is Tomiko Brown-Nagin, the Black Harvard law professor and historian we heard from earlier. She spoke with my co-host Elsa Chang about what's led up to this point. You have just written an excellent biography of the first Black woman ever to serve on the federal bench, Constance Baker Motley, who was appointed a judge for the Southern District of New York back in 1966. And, you know, for a time, her name was tossed around as a possible nominee to the Supreme Court. Why do you think it has taken this long to finally nominate a Black woman to the Supreme Court. Why do you think it has taken this long to finally nominate a black woman to the Supreme Court? Well, this could have happened fairly recently. I do think that these breakthrough appointments require negotiation with a lot of different constituencies. As we saw, there was pressure brought to bear

on President Biden over whom to nominate, a lot of back and forth. And I think we have ended up in a good place with a nominee who is following in the footsteps of Judge Motley, who did appear in media reports about Supreme Court shortlist. She ended up having her accomplishments as a civil rights lawyer weaponized against her with some saying that her experience was too narrow and others saying that she was too liberal. And we are seeing today, Elsa, that there are those who also are counting Judge Jackson's practice experience as a public defender against her. Well, from the moment that Justice Breyer announced his retirement, President Biden's decision to choose a black woman for the Supreme Court has been criticized by many conservatives as a decision to value identity over qualifications. And I'm just wondering how that whole conversation

has sat with you. Well, I think that is a false binary. One can both recognize the value of the appointment of historically excluded individuals to these positions and also promote excellence. And in Judge Jackson, one certainly has both. There's nothing unusual about presidents leveraging Supreme Court appointments to attract support from interest groups. And I think ultimately many Americans will appreciate her appointment because she is highly qualified. And many people will be happy to see this appointment that affirms workplace equal opportunity. The whole question of identity and how it might shape judicial decision-making, I find is fascinating. Justice Sotomayor has been very open about how her identity as a Latina

absolutely shapes her judicial decision-making. What about Jackson? Does she strike you as a jurist whose identity very much directs or shapes her jurisprudence? No. Her backgrounds and her identity obviously are important elements of her experience. But the idea that for African American judges in particular, identity drives outcome is not held up under scrutiny. The primary factor that should drive decisions is precedent. That said, what about Jackson's former experience as a public defender? Do you think that brings something unique to this court? And if so, what about Jackson's former experience as a public defender? Do you think that brings something unique to this court? And if so, what? I think that it is important to have that experience as a lawyer who has represented criminal defendants, indigent criminal defendants,

be represented among the justices for the first time since Thurgood Marshall. Public defenders are integral to our legal system, ensuring due process and the right to counsel. And if we're saying that being a public defender is somehow radical, then what does that mean exactly we're saying about our own system? Tomiko Brown-Nagin, Dean of the Harvard Radcliffe Institute. Before he left office, former President Obama had Katonji Brown-Jackson on his Supreme Court shortlist. Back then, she was a federal trial judge and was seen as a long shot. But of course,

that's now changed. NPR legal affairs correspondent Nina Totenberg has kept an eye on Jackson as she has climbed the ranks. Raised in Miami, she graduated with honors from Harvard College and law school, then clerked for three federal judges, including Supreme Court Justice Stephen Breyer. Jackson's parents were both public school teachers until her father became a lawyer and her mother eventually a school principal. Her parents picked her name from a list of African names sent to her by an aunt in the Peace Corps. It means lovely one. She met her husband Patrick while at Harvard. At first blush, the pair seem an improbable couple, as she put it in a 2017 speech at the University of Georgia.

It's interesting because my husband Patrick is the quintessential Boston Brahmin. By contrast, I am only the second generation in my family to go to any college, and I'm fairly certain that if you traced my family back past my grandparents, who were raised in Georgia by the way, you would find that my ancestors were slaves on both sides. Those who know the couple remember that they were smitten from the start. Dr. Patrick Jackson, a star surgeon in his own right, is the first to toot his wife's horn, and there's a lot to toot about. After her clerkships, she went on to a diverse series of jobs as a public defender, representing the indigent in criminal cases, as a litigator and appellate lawyer in private practice, and she served as vice chairman of the U.S. Sentencing Commission

at a time when the commission sought to reduce the draconian penalties that had been put in place for crack cocaine. There, she earned a reputation for building consensus, and most of the panel's decisions were unanimous. For Jackson, though, sentencing is not an abstract matter. When she was in high school, her uncle was sentenced to life in prison under a three-strikes law for a low-level drug crime. He was granted clemency after serving 30 years. In that Georgia speech, she said that being a federal judge was her dream job. But after President Obama nominated her in 2012, actually getting that job depended entirely on events beyond her control, namely Obama's re-election. And when you add to this fact that I am related by marriage

to House Speaker Paul Ryan, who was at that point running for vice president against President Obama, you can get the sense of what that period of time was like for me. Once confirmed, Jackson quickly became known for working long hours, for a vivid writing style, and her infectious, raucous laugh. Her sense of humor about life was on full display in that Georgia speech in talking about the whiplash she experiences between her two roles, one as a judge and the other as the mother of two teenage daughters. I am a federal judge, which means people generally treat me with respect. But in the evenings, when I leave the courthouse and go home,

all of my wisdom and knowledge and authority evaporates. My daughters make it very clear that as far as they're concerned, I know nothing. I should not tell them anything, much less give them any orders. That is, if they talk to me at all. In short, she's like most mothers of teenage daughters. Though the judge has authored many significant opinions, the most prominent came when she ordered then-President Donald Trump's former White House counsel, Don McGahn, to appear before the House Judiciary Committee to testify about the president's possible obstruction of justice. Trump objected, and in a 118-page opinion, Jackson wrote that, quote,

Presidents are not kings. NPR legal affairs correspondent Nina Totenberg. And additional reporting in this episode came from NPR correspondent Sandhya Dirks. You're listening to Consider This from NPR. I'm Ari Shapiro.