Strict Scrutiny - KBJ, All the Way!

Episode Date: February 28, 2022

Melissa, Kate, & Leah discuss the historic nomination of Judge Ketanji Brown Jackson – KBJ, Yay! – to the U.S. Supreme Court. Professor Lisa Fairfax (University of Pennsylvania, Carey School of Law) joins us to share some personal perspective on Judge Jackson after decades of friendship. Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Kate Shaw. I'm Melissa Murray. And I'm Leah Littman. And this is going to be a rare, happy episode of Strict Scrutiny. I know it's...

I don't even know what to say. We need to mark the calendars because... I fear this will be the last one for a while, but we're going to enjoy it while we're here. And the occasion is President Biden announced his nominee to replace Justice Breyer. And that nominee is Judge Katonji Jackson. This is amazing. And the announcement came almost two years to the day of Biden announcing as a candidate that he would nominate the first black woman to the Supreme Court if he was elected president. So that's kind of amazing, like really fortuitous, the timing. But that means we have this opportunity to create our first happy emergency episode in a long time.

And so we're going to spend the episode covering some key things we know about the judge, future Justice Jackson. And so I'll let us all get into it. We're going to talk about why we're excited about this, the initial response to the nomination and all of that. And we also have a special guest. So on the morning of the nomination, Erin Haines, who's one of the founding journalists at the 19th, published a fantastic article about Judge Jackson and her friendships with three other Black women that span their time at Harvard College and Harvard Law School. The article was so lovely and movingly personal that we wanted to hear more, which is why we invited one of the women featured in the article to join us for this

episode. Lisa Fairfax is not only a close friend of Judge Jackson's, she's a presidential professor and co-director of the Institute for Law and Economics at the University of Pennsylvania Carey School of Law. She's an amazing scholar, teacher of corporate law, and in particular, matters related to corporate and board governance, board fiduciary duties, board shareholder engagement, board composition and diversity, shareholder activism, affinity fraud, and securities fraud. If we are judging people by the company they keep, I think this bodes well for Judge Jackson. So welcome to Strict Scrutiny, Lisa Fairfax. We are so happy to have you here.

Thank you so much. I am delighted to be here, obviously delighted to be in the company of all of you, but of course, delighted to be talking about Ketanji and this historic domination. Well, that's a good place to start. So let's go all the way back and we'll just sort of set out for our audience some key things that we know about Ketanji Brown Jackson, who could we refer to in a shorthand like KBJ? It's very catchy. KBJ, all the way. KBJ, all the way. KBJ hive, rise. It's like the least important thing, but she has the greatest initials for any prospective Supreme Court justice. They're just perfect. So what do we know about her? So one,

we know that she was raised in the FLA, Florida in the house, and she went to public schools in Miami, the Miami-Dade public school system. And I have to say, Florida was very proud. And I don't want to say more, but this has been a high point for the Sunshine State. And so they were really on it yesterday. The Miami-Dade public schools tweeted it out. They loved it. They were so proud of this favorite daughter of Florida, and it should be noted, she's only one of three justices to have actually attended a public or non-Catholic high school. So again, to the extent we're talking about diversity and educational profile, that is an important aspect of her profile.

And she was the president of the student body in her high school and a standout member of the speech and debate team. And indeed, she was awarded in 1988 the national title for original oratory. And if you are a debate nerd, as I was in high school, original oratory, I mean, isn't every law professor a debate nerd at heart? I did Model UN, right? So I don't know if I can. Same idea. International.

Yeah, it is a kind of debate. But original oratory is where you write your own speech and then deliver it. But it's not just sort of like a speech. It's almost like acting. So she's kind of a theater nerd, too. And people talked about that. We'll get into this with you, Lisa. But we understand that maybe she had a Matt Damon sighting in Harvard College. Lisa's laughing. I am laughing. Yeah. You know, Katonji was amazing in all things, but she did in fact do theater and I believe did some work across from Matt Damon before he was Matt Damon, I think. Before she was Katonji Brown Jackson. She was always Katonji Brown. She was always, exactly. I was setting that up. That was the setup. You nailed it, Lisa. But yeah met Justice Jackson. And, you know, a nice contrast

with a recent confirmation hearing that precipitated a Matt Damon cameo on Saturday Night Live. So before we leave for oratory career, I feel like we need to just mention that one of the profiles of her had one of her former high school classmates, who is now an attorney in Miami, Stephen Rosenthal, describing her as the Simone Biles of oratory, which I just absolutely loved. Such a high compliment. But, you know, she she has always excelled in whatever she puts her mind to. So, yes. And I know Katonji is incredibly humble. So she would be humbled by the fact that someone had compared her to Simone Biles. Katonji Jax's parents were graduates of historically Black colleges, and they both

worked as public school employees. And her father actually switched careers and decided to go to law school in the University of Miami's evening program when Judge Jackson was four years old. President Biden spoke about this in his speech announcing the nomination. So let's play that clip here. Judge Jackson describes finding her love for the law from an apartment complex at the University of Miami where her dad was attending law school. She'd draw on her coloring book at the dining room table next to her dad's law books. She grew up to be a star student. And then Judge Jackson also spoke very fondly and, you know, about how her father was really her inspiration when she saw him studying for law school as well.

So let's play that clip as well. My father made the fateful decision to transition from his job as a public high school history teacher and go to law school. Some of my earliest memories are of him sitting at the kitchen table reading his law books. I watched him study and he became my first professional role model. Judge Jackson also has a brother who attended Howard University and worked in law enforcement and later served in the military. She spoke about this in the announcement as well. So let's play that clip here. My only sibling, my brother, Ketaj, came along half a decade later.

And I'm so proud of all that he's accomplished. After graduating from Howard University, he became a police officer and a detective on some of the toughest streets in the inner city of Baltimore. After that, he enlisted in the Army, serving two tours of duty in the Middle East. I believe that he was following the example set by my uncles who are in law enforcement. You may have read that I have one uncle who got caught up in the drug trade and received a life sentence. That is true.

But law enforcement also runs in my family. In addition to my brother, I had two uncles who served decades as police officers, one of whom became the police chief in my hometown of Miami, Florida. I am standing here today by the grace of God as testament to the love and support that I've received from my family. Part of what I loved about this is like she's not just one thing. You know, it had been widely reported in the media that she had an uncle who, you know,

was swept up in crime and had to serve time in prison. But the reality is, like, she is a complex, multifaceted person and has many members of her family in law enforcement as well. So I appreciated this. Yeah, I appreciated that dimension of the speech. I should say that, like, I loved the whole speech. I thought it was so good. But the economy of the way she said, you may have heard about my uncle who, you know, ended up serving a life sentence, but you probably haven't heard about and he was in this very subtle way, sort of a reprimand about the lack of balance in the coverage of her as a full and complex person that was just not at all explicit, like she wasn't actually criticizing anyone, but it was very much present. And you just sort of saw, you know, kind of the agility of mind and economy of

language that she uses. The other thing I thought was really interesting was, and again, this goes to your point about the balance, like she really leaned into herself as a person of faith. And I think that's really, that was striking to me, especially in contrast to the last nominee who was sort of, I think, presented as kind of a paragon of faith. And I think she was saying in a very subtle way, like, we can all be faithful and even along different ideological perspectives. So I appreciated that as well. She led with her faith. She referenced it several times throughout the speech. And obviously, that was a quite deliberate choice as well. Well, and also, I think very much placing herself within an understanding of faith that would be relevant and resonant with members of the Black community.

So Judge Jackson attended Harvard College on a scholarship, and she graduated magna cum laude. And President Biden mentioned this as well in his speech, including the fact that one of her Florida guidance counselors had perhaps suggested to Judge Jackson that she would not get into Harvard. And it was after a debate tournament that took place at Harvard when she was in high school that she believed she could one day be a student there. There were those who told her she shouldn't set her sights too high, but she refused to accept limits others set for her. She had to go on to Harvard undergraduate school,

where she graduated magna cum laude. She went to attend Harvard Law School, where she was a top student and editor of the prestigious Law Review. Sick burn for this guidance counselor. I'm just going to say, I think this was par for the course for guidance counselors in Florida from 1987 forward, because I got this piece of advice from my guidance counselor as well. So look at us now. So now Judge Jackson is at Harvard College.

And this is the point where, Lisa, you met Judge Jackson when you were both freshmen at Harvard. What was your first impression of her? She had so much energy. I think that was the first impression. We were in a class together. I don't remember precisely when we met. What I do remember is just walking across the yard with her as we were kind of just talking about the class and introducing ourselves and how things are going. I'm from California, you're from Miami. But she was so heartwarming, such a good spirit, and so caring. You know, she was always asking, how's it going? You know, do you miss California? Is it hard? You know, always very, very interested in how my transition was was because she knew it was basically my first time out of California. First time on the East Coast, first time, you know, being in an environment that was totally different from the environment that I had grown up in. And she was always trying to figure out ways where I could feel comfortable and where we had some kind of shared experiences. And she was always talking about that. I can also say she was always talking about the material. And I think when I first took the class, I was kind of, you know, do-do-do.

This is interesting. I'm just kind of reading it for the sake of reading it. But I would have these conversations with Katanji and she was already a lawyer, deeply analyzing the text. What do I think it means? How did it resonate with me? You know, how would I consider? And, you know, as she was talking and, you know, trying to draw me out and getting me to kind of think about the literature, in the back of my mind, I was thinking, this is what you're supposed to be doing, right? This is what it means to be an excellent student, an excellent scholar, an excellent thinker, is to be thinking all the time, but also to be listening. Because I think I also noticed in that moment that she would hear what I had to say and kind of draw me out. And, you know, what do you think about that? And then she

would kind of, huh. And so here's what I think. And here's how I, she, she already at that moment. And, and, you know, we talked about it in the article. She, she had this ability to listen to what everyone was saying and then persuasively kind of build on what they were saying to kind of make this compelling case about whatever it is she was talking about. You know, I heard what Lisa said. I think, you know, Nina was kind of saying this, you know, I think such and such was saying this. I don't think that's that strong of an argument and here's why. And so, you know, here's where I think we should, I mean, already she was kind of doing that kind of stuff in her Katanji way. So it was my first introduction to the brilliance of her mind, quite frankly, and her exceptionalism.

That's just such an amazing depiction of her. And it, you know, makes me wonder, how do you think it'll translate to her work as a justice, right? This sort of ability to listen, to draw people out, to maybe serve this convening function. Will she do all of that, do you think, when confirmed as we expect she will be to the Supreme Court? You know, you introduced me and I have been a professor for going on two decades and have had the opportunity on the other side of the aisle to engage with, you know, thousands of students, hundreds of professors, you know, and without a doubt, Katonji is one of the brightest legal minds of our generation. She is just brilliant,

full stop. And I think that brilliance will translate into her being a brilliant jurist, a brilliant associate justice in all of the ways that we know are important for jurists in terms of their ability to be hardworking, to understand the assignment that is the fidelity to law and the fidelity to trying to get things right. That ability to listen that I talked about is so important. And we know that is as professors, like being a good lawyer is as much about listening as it is about arguing, being able to hear what other people are saying and to take what they're saying and incorporate it into your own thinking and to your own assessment of the case law and the facts. You know, all of that is what will make her an excellent jurist in whatever forum she's in, including, of course, if she is confirmed as she so richly deserves to be. One of the things that was, I think, most interesting to me about the article is that

it chronicles your friendship from college to law school. Apparently, she brought together all of your friends. You all applied to Harvard Law together. And you all got in and stayed friends during Harvard Law School. And then you went off into the world and you maintained your friendship. Many of you had children at roughly the same time. And so together, you kind of face the challenges of balancing work and family together. And indeed, Judge Jackson mused about some of these difficulties

in this lecture at the University of Georgia. So let's hear this tape. Right now, in fact, I am in that peculiar stage of life when I experience near daily whiplash from the jarring juxtaposition of my two most significant roles, United States District Judge, on the one hand, and mother of teenage daughters, on the other. During the workday, I am a federal judge, which means people generally treat me with respect.

I have people who work for me in my chambers, litigants look up to me to give them answers to complex legal questions. I control what happens in my courtroom. When I say things people listen and they generally do what I tell them to do. But in the evenings when I leave the courthouse and go home, in the course of that transition, 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.

I really identified with this statement that she made because I, too, am the mother of a teenage daughter. And, yes, you go from being semi-respectable at work to just being the object of incredible derision at home. Have you all talked about the challenges of balancing work and family together? And here she is. She's going to be only the second mother of school age children on the court. What is she going to bring? And what kind of example do you think she will set for other women, including black women who are facing these challenges, too? Nina, Antoinette, Katonji have all talked about the juggle throughout our stages, both when we were in school, when we got out of school, when we got on the path of motherhood, I was actually the first to have a child. Everyone talks about my first daughter being everyone's

daughter. And we were all kind of experimenting on her. I hope it worked out well. But I will say everything Ketanji does, she's very thoughtful about. And, you know, we all know the juggle is real. And, you know, trying to be a good mom and also doing well in the workforce is a difficult balance. And it's a balance that you work on every day. But it's also, I think, a balance you have to be committed to working on every day. And I think what really resonated for a lot of people when they heard Ketanji in her speech was when she said, you know, I'll always be your mom, no matter what title I have. And I think that brought tears to the eyes of every parent watching, right? Because that is the way you feel. No matter what I do, I'll always be your mom. And I will always, I think,

try my hardest to set a great example for you. So I think this is not only about the juggle, but about the example that she's setting for parents and for their children about what's possible. So as Melissa was noting, you know, you have obviously stayed in touch since graduating. What's it like to see your friend achieve this kind of career success? Wow. We watched together, me, Nina, and Antoinette were on the phone together watching in our separate living rooms, but together in heart and spirit as President Biden spoke about her. And then, you know, she walked up and, you know, on the one hand, it's this surreal moment where you're like, that's Katonji. That's crazy. You know, on the one hand, it was this pure

happiness and joy for our friend who we know was so deserving, you know, to see one of your closest friends achieve such an important honor is just, it made us all so happy. We love her so much. And to see this moment for her, which again, she so richly deserves because she is just brilliant. So it's that kind of piece. And then, you know, I will say afterwards, when I started reading some of the news stories and thinking about the historic nature of the moment, I think in the moment originally, it was just the overriding joy that something like this was happening to my friend, to my sister, someone who I love so much. And then it was like, oh my God, this historical moment of what it means, obviously an honor, a privilege, a responsibility, which she will make us all proud.

I mean, she's made for this moment. She will not disappoint. And when they write about her in the history books, it will be everything that we thought it was. And so, you know, it's that piece too, that now I reflect on and think, wow, Katani's going to be in the history books. And who better to carry this moment? And why do we know who better? Because she ended that talk talking about Constance Baker Motley. As it happens, I share a birthday with the first Black woman ever to be appointed as a federal judge, the Honorable 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.

Judge Motley's life and career has been a true inspiration to me as I have pursued this professional path. And if I am fortunate enough to be confirmed as the next Associate Justice of the Supreme Court of the United States, I can only hope that my life and career, my love of this country and the Constitution, and my commitment to upholding the rule of law and the sacred principles upon which this great nation was founded will inspire future generations of Americans. She understood the moment. I love that part. I love that she talked about being birthday twins with Judge Motley and sort of recognizing that Judge Motley was overlooked in a lot of ways. Like she was the first Black woman to be on a federal court, but she was often mentioned but never

selected to be elevated to the appeals court. And she was an amazing judge. And in this moment, this final glass ceiling for Black women in law had been shattered. And she brought Judge Motley into the picture, too. And I loved that. I thought this was amazing. And it's who Ketanji is to recognize that she needed to share the moment with those legal giants. Okay, I'm not crying. You're crying. I don't even know what more to say. Lisa, thank you so much for coming to the show and sharing these warm reflections of your friend and giving us a more personal view of Judge Jackson. This was

lovely. And again, the perfect introduction for the KBJ Hive and KBJ Hive Rise. It's coming. Here we go. Thank you. Thank you. All right. I don't even know what to say. That was a great interview. It's kind of hard, yeah, to build on that. But we'll try. But we got more to say. We do have more to say. So our girl, Leah Lippman, decided to go to the vaults and contrasting between, let's say, high school

yearbook photos of future Supreme Court justices. So let's start with the new nominee, Judge Jackson, who in her high school yearbook photo is literally photographed reading a book of Winnie the Pooh while a classmate is carrying a stuffed Winnie the Pooh. And in the interview, she says, I would like to go into a career in law. It's just delightful. It's wholesome. Wholesome. It's wholesome. Who doesn't love Winnie the Pooh? Right? She's inspired by her father to go into law. Again, it's just the Thousand Acre Forest, everything about this. There's a book. It's just delightful. And, you know, I think this is of a piece with another justice, a favorite of mine, their high school yearbook. So Justice Elena Kagan's high school yearbook has her with a quote from none other

than Justice Felix Frankfurter saying, government is itself an art. I mean, I just, I love the very strong Hermione Granger energy I got from both of their yearbooks. Like they have a time turner and they're going to multiple classes. They are. They do everything. And they are just delightful in the course of doing so. Again, Katonji Brown Jackson has a book of Winnie the Pooh. It's just, how can you not love this? They're nerds. They're basically wholesome nerds.

We love this. Wholesome nerd women. She's got the biggest smile on her face and she's in the Judge Jackson picture, the then non-judge Katonji Brown picture. But she looks like a judge. She has like a... She's dressed like a baby. She's dressed like a baby lawyer.

She's a teenager and she looks like, yeah, not just a lawyer but a judge already. She's got like this almost proto-Jabot scarf on. Yes, she's got like a

scarf on. And a cardigan, like a jacket cardigan, like a jardigan almost. She's ready to go. She just has to like tick off these like technicalities. Gotta go to law school. Gotta pass the bar.

Yeah, yeah. She's ready. This is where I'm headed. She's ready. Yeah, she has known. Not even since then. Since she was four, she has known she wanted to do this. And this, of course, is in stark contrast to the yearbook photo of another recent nominee slash yearbook entry.

We are, of course, talking about the person whom Matt Damon was forced to imitate on Saturday Night Live, Brett Kavanaugh, whose yearbook entry contains references to him and his friends like hooking up with the same girl drinking it's just boofing it's gross it's gross um are either of you watching love is blind yes no but i haven't watched in a while do i even need to answer it wait it's a reality show right it's it's a reality show so if you're watching the most recent season, I have to make this analogy. Justice Kavanaugh is the Shane of the Supreme Court. And future Justice Jackson and Justice Kagan, they're the deep Ds, right? Like they're the cool, awesome girls who know their worth.

Or not going to hook up with Shane. Exactly. Not going to hook up with Shane. Wow. Not going to hook up with Shane. Wow. I don't even know what to say about that analogy. You took it there. Leah, these photos, I don't know how you managed to find these, but oh my God, these are insane. These are absolutely insane.

But you're exactly right. The contrast is quite telling, right? I mean, yeah, you got the Hermione Grangers. And I don't know, who's the Harry Potter analog for Brett Kavanaugh? Draco Malfoy? No, because it's not about the... Who's Draco Malfoy's dumb friend? Oh, my God. I'm sorry. I can't remember the name. Crabbe and Goyle. The two of them. Crabbe and Goyle. Yeah, yeah, yeah. One of them. I was actually thinking, it's just like, it's just that it's so basic.

It's not even that it's evil. It's that it's basic, right? I mean, maybe, it's like, the Don Friend is pretty basic. Yeah, Draco isn't ultimately that evil. I'm not saying he's like Lucius Malfoy.

I'm not saying he's like Beatrix Lestrange. I just kind of think of him as kind of like maybe, you know, a nondescript Hufflepuff. On a good day. All right.

That's fine. Can we talk about the college yearbooks? Because you also went into that. Yes. Okay. So let's talk about some of the college yearbooks. The college yearbook, you know, Justice Sonia Sotomayor also proves herself to be quite the Hermione Granger.

She has this wonderful quote, I am not a champion of lost causes, but of causes not yet won. We mentioned how Justice Kagan in her high school yearbook had a quote from Justice Frankfurter. And then our boy Neil Gorsuch comes along. And guess who he has a quote from in his yearbook? So it is Henry Kissinger. And that by itself would not be disqualifying. I mean, I think Henry Kissinger has said some things that might be quotable, but this is not that quote. And the quote he chose to include is, the illegal we do immediately, the unconstitutional takes a little longer. And Sybil Trelawney steps in to be like, it's a prophecy, y'all. It's a prophecy.

Exactly. I was like, whoa, on the nose, my friend. There is real Lucius Malfoy energy here, right? Yes. Yes. Yes. There is a walking stick with like a snake on it. The picture is so ominous. Yeah. The picture is very ominous. I don't know that it's ominous. It's just very self-satisfied. There's a smirk to it that I can see the things that I'm going to do.

But notice here, his birthday is listed August 29th, 1967. So he has big Virgo energy. Well, there we go. You kind of have to see these pictures. I can tweet them out. They're really good. So part of the reason why we're talking about these yearbook pictures is because whenever a new nominee is announced, there's always this whole discussion of the person's credentials,

how do they measure up compared to other people who are already sitting on the court. And so we did this little deep dive just to make clear for all of you that in every way that counts, this new nominee is the equal of, and maybe even her credentials exceed, those of some of the folks who are currently sitting on the court. So let's do the rundown. Let's do the file of Katonji Brown Jackson. So Leah, she graduates magna cum laude from Harvard College and goes on to Harvard Law School, where she graduates with honors and is on the law review. And then what happens? Then she goes on to clerk for three different judges. How many, Leah? Three different judges on three different courts. So she clerks for Judge Patty Sarris on the district court. That's the trial-level court in the federal system.

Then she clerks for Judge Bruce Selya on the First Circuit. That's a court of appeals. And then she clerks for Justice Stephen Breyer on the Supreme Court. And in her speech during the announcements, she had kind of a special words of gratitude for Justice Breyer. And I wanted to play that clip here. Justice Breyer, in particular, not only gave me the greatest job that any young lawyer could ever hope to have, but he also exemplified every day in every way that a Supreme Court justice can perform at the highest level of skill and integrity while also being guided by civility, grace, pragmatism, and generosity of spirit. Justice Breyer, the members of the Senate will decide if I fill your seat, but please know that I could never fill your shoes.

I just love this. I loved it so much. The whole wholesome energy, the humility. So we've now seen several justices replace the justice that they clerked for on the court. And this was just by far the most endearing note of gratitude and affection from any of the succeeding justices. A true tribute to the mensch on the bench. Exactly.

Yeah. Exactly. Okay, so she does these three clerkships. She would be the only justice to clerk on those all three levels of the federal judiciary. Like Ciara said, level up. I'm going to pretend I know what to do. Okay.

Jesus, Kate. I'm going to make you a mixtape, Kate. I'm going to make you a mixtape. Okay. Okay. Yeah, please do. So after her three clerkships, she then went on to work in a number of different jobs. And she's only 51, but she has experienced just a ton of both private and public sector lawyering at the very highest levels. So she first went to work at a law firm for a couple of years. She then left big law to work as a staffer on the United States Sentencing Commission. She then, after a couple of years as a staffer, realized,

and she explained this in response to a question for the record posed by a member of the Senate Judiciary Committee. She talked about her decision to leave the Sentencing Commission and become a federal public defender. And she basically said, I'm here making this kind of sentencing policy on the Sentencing Commission, but she realized she lacked a practical understanding of the actual workings of the federal criminal justice system and decided that, in her words, serving in the trenches, so to speak, would be helpful. So she became a federal public defender. We stan a humble lawyer who knows she's got to get more experience.

I love this. I know. And Lisa referenced this quality. And I mean, I've met Judge Jackson. I don't like know her well, but I do think that, and I know that you guys have, I think, you know, had encounters with her as well. Her humility is just like so evident. And despite her like incredible brilliance and accomplishment, she is like very humble and self-effacing. So she sort of realized like, I'm not just going to make up sentencing policy without understanding how sentencing affects people. So she goes, she spends several years as a federal public defender, says it was an extraordinary opportunity to hone her litigation skills, but also gain knowledge about the critical aspects of the federal criminal justice process.

So she did that for several years. This means she would be the first public defender to serve as a justice on the Supreme Court. Justice Thurgood Marshall did have extensive experience in criminal defense, but he was not a public defender. So this, I think, is an enormous deal. And after those years working as a public defender, she went back to private practice for a few years. And after that was nominated by President Obama to serve as vice chair of the Sentencing Commission, which she did from 2010 to 2014. So actually making sentencing policy. I mean, I guess maybe I should have explained for folks who weren't familiar with it. The Sentencing Commission is a federal agency that sets rules and guidelines regarding sentencing policy. I mean, I guess maybe I should have explained for folks who weren't familiar with it. The Sentencing Commission is a federal agency that sets rules

and guidelines regarding sentencing in the federal system. Justice Breyer actually also served for a term as the vice chair of the Sentencing Commission. And during Judge Jackson's time as vice chair, that body, the Sentencing Commission, reduced the divergent treatment of crack and powder cocaine that had resulted in wildly disparate treatment of black and white criminal defendants. So it was a quite consequential tour as the vice chair of the commission. So then Judge Jackson is nominated to the district court for the District of Columbia. This is also an important credential because it means she's actually overseen jury trials. She's actually sentenced defendants. She's ruled on evidentiary objections on the current Supreme Court. Only Justice Sotomayor has experience as a

district court judge. And that often shows at oral arguments. And it will be wonderful to have someone else with experience at actual trials. So after serving on the district court where she had that great experience as a trial court judge, and again, she and Justice Sotomayor would be the only members of the currently composed Supreme Court to actually have that trial court experience if Judge Jackson is confirmed, she then went on to the D.C. Circuit, where she was confirmed with the support of Senators Murkowski, Collins, and Graham. And that really is, I think, significant. I think it's one of the reasons why she was so high on the Biden shortlist. Not only

had she been confirmed by this Senate recently, she had bipartisan support. And she'd also been confirmed twice before. The Sentencing Commission is a Senate-confirmed position, as was her district court position. So she'd actually been through this three times. I'm sure that was appealing. But she's been on the D.C. Circuit only since June of 2021. And again, it is worth noting, I think she has always been high on president's list for Democratic appointees to the court. So I know she was mentioned when Obama was casting about to fill Justice Scalia's seat. Obviously, that nomination went to Judge Merrick Garland and then went nowhere. But she's always been thought of for this. And I think one of the reasons why the

Biden administration moved so quickly to nominate her to the D.C. Circuit was to have her in place when this vacancy became available. And again, she's really fantastic, lots of experience in the federal judiciary, mostly at the district court level, but that's still very important as well. So now maybe we can say all of the reasons, or at least some of the reasons, since this is a time-limited episode, why we are so excited about her nomination to the Supreme Court. So where to start? Because this has been like the most durable glass ceiling in the legal profession. And I think it's just fantastic that she is the one to break it. Black women have been around for a long time in this country. And there have been black women lawyers, black women judges, no one has gotten

to this point. Many people I think who have been quite good who could have been Black women lawyers, Black women judges. No one has gotten to this point. Many people, I think, who have been quite good, who could have been thought about for many of the seats that have been filled in the last 12 years, weren't. And I think it's great. And I love how the Biden administration had what was literally the longest shortlist in the world with so many women that it just made it clear there was a huge reserve of talent that really had never been tapped. And I thought as a public education exercise, it was really smart. Yeah, I think that was actually something that was so important about both the public commitment to nominate a Black woman and then the kind of process that unfolded, you know, in a public facing way in which the administration, you know, very clearly was and, you know, told reporters or reporters were writing long profile pieces about, you know, the consideration of these very long lists of incredibly brilliant and qualified black women who have not been publicly on SCOTUS short lists before publicly or privately, I don't think. And I think the public sort of saw the reserve of

talent and accomplishment. And I think it, you know, catapulted into the sort of public imagination, a number of people, some, you know, with high public profiles, some not, but even folks with high public profiles, were not necessarily thought about in the same breath as Supreme Court justice. And I think that I do think that there has been a shift that this the last, you know, month or so has produced that I think is really important. And I also just think, to the extent that there was all of this relatively quiet now, but initial pushback from conservative commentators about it being inappropriate for President Biden to have so narrowed the category of candidates he would consider, I think that actually was a kind of important moment of like presidential constitutionalism

at play in which the president was basically suggesting the Supreme Court, a majority of this conservative Supreme Court, clearly believes and is sort of poised to announce as a principle of constitutional law that any consideration of race whatsoever, you know, higher ed admissions is obviously the context in which they're likely to rule in the next year, but that it's all equally constitutionally suspect to any consideration of race whatsoever. And I feel like Biden was subtly saying that's not actually true. And just because five or six members of the current Supreme Court think that, that doesn't make it sort of fact as a matter of constitutional principle or logic to suggest that I'm going to focus my search on a category of people who have been historically excluded from these searches and underrepresented on the federal bench is just wildly different from a process that said, I'm going to focus on white men, right, which obviously most historical search processes have, they just haven't explicitly announced those conditions. And I think that there was something sort of direct about his framing his search process that way that also was really had an important kind of, you know, public popular

presidential constitutionalism dimension to it. I think that's an incredibly astute observation, Kate. And then to see it sort of played out in the nomination ceremony where the president comes out flanked by these two black women, obviously, Katonji Brown-Jackson, but also Kamala Harris, the vice president. And that was kind of amazing. And then you sort of marry that to the work that the Biden administration has done diversifying the federal judiciary. I mean, it's the most extensive kind of reorganization of the federal judiciary since Carter. And that was kind of amazing, too. Also, we haven't talked about the sort of theater of the nomination ceremony, but it was so moving and dignified. The speeches that we've discussed were fantastic,

but you really did get a sense of the occasion that this was an historic moment. And all of this happened and no one contracted COVID, which was also amazing. It wasn't the mask of red death. So you can have nice things, it turns out. You can make an historic nomination and not jeopardize everyone's health. So good going, Biden administration. You nailed it. You nailed it. Something stuck out to me earlier in the speech when President Biden was introducing her when he noted that her parents, you know, grew up under segregation and just how...

It was like not even two generations ago. I mean, that's the part that's wild. Two generations. And Melissa, can I flag one thing for our listeners, which is that in case they didn't have a chance to read it, you had a terrific piece in the Washington Post that basically made the point that after nearly two centuries of no Black voices on the Supreme Court, since 1967, there has been one. And initially, that was Justice Thurgood Marshall. And since 1991, that has been Justice Clarence Thomas. And that it matters a lot, both publicly, which we've been talking about a little bit, but also very much to the court's internal deliberative processes, that Justice Thomas will no longer be the sole authoritative voice on issues of race at the

Supreme Court, or the sole authoritative Black voice. Obviously, Justice Sotomayor surfaces issues of race all the time in her opinions and presumably in deliberations. I feel like I want to flag that and see what else you want to sort of highlight from that piece. Well, no, I mean, it wasn't just part of, you know, I know I'm always talking about Justice Thomas and race in some capacity or another, but I do think that he does have a kind of authority with his colleagues when, you know, he makes these interventions, like whether it's to say that expanding the Second Amendment is important for Black people and their survival, in contrast to the arguments that gun control advocates are

making about how Black communities are actually terrorized by gun violence. He makes these arguments, and it comes from a place of personal experience. And I think that carries weight. She is someone who's going to be coming out of the post-civil rights South. And I think that's just a very different experience from the one that Justice Thomas experienced. And maybe that will inform the way she engages when the court takes up the affirmative action case next year. And tons of other cases as well, I am sure. For sure. I think it's such an important point. So many other reasons to be excited about her nomination. We've already alluded to a few.

She will be the first public defender to be a Supreme Court justice. I am also particularly excited about the fact that she has extensive experience in federal sentencing. And last but not least, it turns out that we are about to have a second Swifty on the Supreme Court. How do we know this? Well, listeners, there is this tradition where judges and justices hold this kind of mock trial every year, and it's put on by Supreme Court advocates. And this particular year, when Judge Jackson was participating, it was like a murder trial involving, you know, Romeo and Juliet and, you know,

how the friar gave them poison. And Judge Jackson was on the panel questioning the lawyers arguing the case, and why don't we just play the clip? Well, you mentioned the Taylor Swift song. Yes, she wrote a song about love story, but she also has another song called Bad Blood. I mean, wasn't Friar Lawrence aware of the fact that we were in this situation? The facility with Taylor Swift's repertoire. You know, I don't give these invitations out lightly, but I will put the marker down.

Judge Jackson. Come on the pod. Come on the podcast. Discuss Taylor Swift. We will have a delightful time. I mean, you know, we've only invited Justice Kagan, Regé-Jean Page, Taylor Swift, and Meghan Markle. I mean, I'm willing to add Judge Jackson to this.

That's a tight five. A tight five. Exactly. Exactly. No, we did invite Justice Breyer Jackson to this. That's a tight five. Exactly. Exactly. We did invite Justice Breyer when he announced his retirement. Well, no, we invited him to be a co-host,

which is different. We had invited him to audition to be a co-host. I thought he had it in the bag. It would be a formality. That's what I say. I mean, he's like, I don't audition.

My agent knows I'm no audition. You offer me the part. I mean, he's like, I don't audition. My agent knows I'm no audition. You offer me the part. I think technically we did offer to audition him for like a segment where people would write in and ask for his advice about like pot roast and whatnot. So it wasn't truly a co-host gig. Oh, you're walking it back. Now there's a chance he might actually take us up on it. Well, no, no, no, no. I want to define the role. So we're all on the same page.

Well, it was going to be a segment. It's a segment. Exactly. It's like Cody XOXO where people will write in to Justice Breyer and he will answer a few questions. And he doesn't have to take a lot of time. Yeah, it would be great. Just like a defined segment. Exactly.

He's a contributor. That's perfect. But future Justice Jackson's going to be too busy for an ongoing role like that. But one time guess. No, that's why I just extended her the invitation. As she would like as time becomes available. First black woman, first public defender, sentencing experience like her former boss, and – First justice to clerk on every level of the

federal courts. And she likes Taylor Swift. So we're going to get Easter eggs and opinions. So some initial reaction to the nomination and then maybe some things that we'll be watching going forward. So there were some notable statements of support immediately following President Biden's announcement. So the Fraternal Order of Police came out in support of her nomination. That was significant. She's clearly very proud of her law enforcement family members. And the Fraternal Order of Police is now in support of her. The Republican mayor of Miami also voiced his support. Interestingly, as some listeners may have heard, Paul Ryan seems, I didn't support her exactly. He's very pleased for her. He's definitely made some very warm statements praising her as a

person and a mind and a jurist. We should say that Paul Ryan is related to Judge Jackson. Judge Jackson's husband has a twin brother who is married to Paul Ryan's wife's sister, meaning they share a sister-in-law. Is that right? I don't know. They're basically play cousins. They're basically like cousins. They're loose cousins. They see each other at the barbecue.

There was also a letter of support from various scholars at the conservative libertarian think tank, Cato. So that was also notable. And then an awesome letter by more than 200 Black women law professors, including our own Melissa Murray, and deans who wrote a great letter in support. And I just want to put out there, I think whoever wants to try and come for her is really going to have a difficult time because I don't think we've ever had a situation where Black women have been so behind a nominee. I mean, imagine when people come for Beyonce. I think it's going to be like that, like when the beehive is like, I'm sorry, excuse me, and Twitter is just swarmed with bee emojis.

I think it's going to be like that. Black women are not playing around. They're excited about her. They're mobilized, and they don't want to hear about it. I want to see all the bees and maybe some snakes in the various Twitter feeds of some of the Republican senators whose initial objections, you know, pretty questionable. Let's talk about some of these. Well, let's talk about these. Objection number one. She went to Harvard. I mean, come the fuck on. I mean, like with this historic nomination, President Biden is nominating the first black woman to be the Supreme Court. You're, must have gone to a lower-ranked law school. I mean, it's not like law school rankings, like, you know, means someone is, like, smarter or better. But, like, you can't insist that the first Black woman justice has to be penalized for a credential that other people are celebrated for. It's so offensive to me. Well, so Ellie Mestal had a great piece in The Nation

last week where he noted that for Black people of our generation, and I think Ellie and I are roughly of the same generation, and I think Judge Jackson is broadly in that generation, like Generation X. You were told if you wanted to have a chance at this kind of professional success at these upper echelons, that's what you did. You went to an elite school. You sacrificed all of this. And so in Ellie's view, finding these qualifications disqualifying right now is a little bit like changing the rules of the game mid-play, which I think is totally right. But to me, that's not even the most offensive part. I mean, they're basically acting like the fact of an elite education is a proxy for being completely removed from the lives of everyday Americans, like that you cannot understand what everyday

Americans go through. And it makes it sound like you graduate from Harvard Law School and you get a country club membership and a butler. And no one talks about the fact that maybe you're paying your way through loans, maybe you're working like a zillion jobs to pay for this. You get economic mobility, professional mobility, but you're still part of a social and professional milieu that's quite mixed. And it's just gross. And I think it's just gross that they're doing this. And it never was an issue before. No, it's such a great point. And even if you did get a country club membership and a butler, it's not a problem. Definitely you don't. But even say you did get a country club membership and a butler, it's not a problem. Definitely you don't.

You don't. But even say you did. Like, say, accept the hypo for a moment. The idea that it would be uncontroversial that Kavanaugh and Gorsuch got their clubs, their membership, and their butlers, because they're the kind of people who deserve those things. And then all of a sudden, it's conspicuous that she gets a butler and a country club membership. Like, it's something we even need to discuss is offensive in just like a slightly different,

but I think equally powerful way. And no one's saying like, you know, the real, real crime here is that we have a Supreme Court in a nation filled with high schools and two members of the court actually went to the same Tony Washington, D.C. boys school. And no one wants to talk about that. So before you get to Harvard Law School, let's do Georgetown prep.

Yeah. Okay, next objection. Is that she hasn't been an appellate judge that long. But like all Black women, I keep receipts in my purse and I have a couple to pull out. So yes, it is true that she has only been on the D.C. Circuit for less than a year. But you know who else also had limited experience on a prior federal court?

How about none other than one John G. Roberts, who was sitting on the D.C. Circuit for just a little over two years before he was nominated to first fill Sandra Day O'Connor's seat and then selected to be the Chief Justice of the United States with absolutely no administrative experience in the federal judiciary in advance. So really interesting that you're playing that one out. And let's not stop there. I have another receipt. This is a CVS-sized receipt. There's also one Clarence Thomas who was sitting on the D.C. Circuit for just over a year

before he was nominated to fill Thurgood Marshall's seat. Oh, and look, I also have a coupon for $5 off a $20 purchase. And it reminds me that Amy Coney Barrett was on the Seventh Circuit for about three years before she was nominated to fill RBG's seat. And happily, Commander Steve Vlodik has also been to CVS, and he also has a very long receipt. And he was at the ready with a handy-dandy chart to rebut all of these claims of inexperience. And as he tweeted, and as it was retweeted by the White House, Judge Jackson has 8.9 years of prior judicial experience at the district court level and the circuit court level experience, which is more than Thomas Roberts, Kagan, and Barrett had combined when they were nominated to the court. Yeah, they're flailing. It's clearly flailing.

Another thing they're reaching for in the flailing is that she is the radical left candidate selected by dark money groups. One, I think we should introduce the people making that accusation to a little organization known as the Federalist Society, which personally selected the former president's nominees. So it's kind of amazing that they can keep a straight face and make this accusation, and yet they seem to be doing that. People should just laugh at them when they do this. It's ridiculous. On the merits, all of her work obviously belies this, right? You know, and the Sentencing Commission. So on the Sentencing Commission, she cast, I think, around 60 or so votes. And like 50 or something of those were unanimous.

She was oftentimes voting with Chief Judge Bill Pryor on the 11th Circuit, who was on President Trump's shortlist for the Supreme Court. And, you know, when the votes split, she wasn't just siding with the Democrats against the Republicans. And so she's not, you know, someone who they can just paint into a corner. And, you know, because she does have that long experience as a district court judge, you can go look at her actual corpus of work. You know, she's issued over 500 decisions. She's only been reversed or vacated in a handful of them, like fewer than 15 out of 500. That's like a 2% reversal rate. And in one of those, when the D.C. Circuit reversed her, she was ultimately vindicated by unanimous

Supreme Court in an opinion by Justice Thomas in- Not right in Guam versus the United States so this is just based off of her Senate Judiciary Committee questionnaire from her nomination to the DC Circuit but it's just like this too is once you just like look at any fact just an obviously meritless, specious line of attack. Which brings us to the RNC Research Twitter account who broke the following news. Wait, wait, wait. The RNC Research Twitter account might be misnamed given the research they've managed to utter. So they came out with this bombshell. Are you ready?

I'm ready. Hold your breath. Katonji Jackson is a registered Democrat. Shut the front door. Nominated by a Democratic president. Nominated by a Democratic president. Okay. Do I have an unfortunate piece of news for them that is just going to horrify them and blow their socks off? And that is when I tell them that a Republican president nominated a former Republican president's staff secretary to be a justice on the Supreme Court. Can you imagine the political, ideological, just shenanigans? It's too much. It's too much. So not only is she a registered Democrat,

these geniuses at the RNC Research Twitter account came up with, they also noted that she donated to Obama's presidential campaign and even worked for his campaign. This was before she was in public service as a poll monitor. Imagine working to secure the vote for people in various jurisdictions. Imagine that. Also, they note in 2016, her husband donated $1,600, a princely sum to Hillary Clinton's campaign. That's what bought the email server, obviously, the $1,600. Like, this is what you have? Again, yeah. Like, if these are their lines of attack, they're just laughable. They don't have

anything. She is impeccable. Also, Google Ginny Thomas and come back to me. Like, really? Like, you're going to talk about her husband's $1,600? I was just curious how much she donated because the tweet names the amount her husband donated, but not hers. Looks like she was at Morrison & Forrester at the time. And one of her donations was for $50.

One was for a hundred. Kate one was from the american public needs to know 50 dollars you can't buy justice justice can't be bought wait no but for the sake of completeness i will say there were two other donations each for 400 so but the first one i found was 50 i was like this is really all they found? But even they had the sense to realize that they were not going to put the actual sum in the tweet because people would laugh at them. Are we likely to see, do we think, further critiques of the process of the president bias, like narrowing the universe of candidates by pledging to nominate a black woman, that there is some patina of illegitimacy over her entire nomination? They're going to beat that horse. Is she going to be asked questions about it, do you think?

No, I don't think they're going to say it to her directly, but I think they're just going to continue talking about affirmative action and the universe of qualified candidates were not considered. But I don't know how you make that claim with a straight face in light of her background, but also in light of all of the nominations that have come before. We've had like 100 plus nominations where broad swaths of the populace have not been considered. And then you add that to the fact that literally on any metric,

she is absurdly overqualified for this position. Well, I heard someone was saying she graduated from Harvard cum laude and not magna cum laude. And I was like, like, that's what we're doing? Like, Brett Kavanaugh graduated cum laude from Yale College. Like, I mean, like, they need to read he was a really good intramural basketball player. I know, I know, I know, I know. Intramural basketball is worth at least one Latin distinction. For sure. Lindsey Graham tweeted on the morning of Friday, the 25th, when the nomination was announced, that he predicted the process would be respectful, but interesting. What the hell does that mean? Oh, really?

What does that mean? Yeah, he was saying respectful, but not that respectful, I think is the translation. I know we'll get into what this will look like and what the dynamics of this will be. But I really do think the Republicans need to tread carefully because I don't know that it's a great look. I think the optics are really poor if they try to beat up on the first black woman nominee when there really isn't much to beat her up on. Maybe they will hire like a special prosecutor like they did during the Kavanaugh hearings when they were not going to be the ones questioning Dr. Blasey Ford and try to outsource it to someone. I feel like in some ways, like, that's what we're seeing from some conservative commentators, like they are the ones making all of the most obscene, you know, offensive statements.

And then you get slightly like warmed over versions of that from, you know, the Republican senators. And I just feel like, you know, yeah, Ed Whalen has had lots to say, and like the whole crowd, any event. So what do you think we're going to see at the confirmation hearings? Yeah, I have a lot of questions about it. I mean, I'm sure we'll talk more as we get as the hearings are underway, which should be before March is out, right, should be in the next couple of weeks. But I think, I mean, I am so curious, this is gonna be the first post filibuster Democratic nominee to the Supreme Court. And I'm curious whether that changes the dynamic at all. I mean, we've had with the three Trump appointees, these like,

just increasingly ridiculous levels of non-responsiveness, which I mean, Amy Coney Barrett was just sort of like the culmination of. She said almost nothing. She refused to confirm that like Griswold was secure, although she was like, oh, probably a state wouldn't pass a law criminalizing contraception again, which I don't know if that prediction was correct. So but she was unbelievably non-responsive. And they all seem to have built on the kind of that John Roberts like judges are automatons. And

shift. Yeah, exactly. And I just I would love to see a little bit more acknowledgement of the human dimension of judging the fact that life experience obviously bears on the way you approach legal questions, which I mean, I would love that as a matter of kind of public education, if that's going to complicate the confirmation. Like, I guess there's no real upside for the White House. But I think that, like, she should be confirmed swiftly. Incentives and the public should actually get a better sense of what judging consists of. Incentives may be misaligned here, and I'm sure the confirmation imperative will overtake any other interests. But, you know. I just think it can't be the first Black woman nominated to the court to raise the alarm that judges might actually be exercising their own judgment.

I guess that's right. I mean, look at how Justice Sotomayor just got beat up for saying something about being a wise Latina. I mean, she wasn't even speaking in the context of a confirmation. I mean, but they sort of reached back into the ball for a speech. And it was totally mischaracterized and the attacks were outrageous and so unfair. And yet she kind of had to repudiate it, right? She didn't quite apologize, but she said, I didn't choose my words that carefully. And I don't know, Jackson gives a lot of speeches. It's possible they'll find something similar in one of her speeches. And I don't know

how the reactions will play. And I'm sure you guys are right. The most important thing is just like to keep your head down and get confirmed. But if you only need 50 votes, like maybe you have a little bit more wiggle room, but maybe for the first black woman nominated to the Supreme Court, like you can't. Also, you might only have a ceiling of like 50 or 51 votes if the Republicans are truly going to just like vote as a block against any nominee that the Democratic president would put forward. Again, I'm just like, is this the hill you want to die on? Like, this is an historic nomination. The country is watching. It doesn't change the ideological composition of the court at all. Like, do you really want to be those guys who clearly were against the first Black woman to be nominated to the court, even when she's clearly qualified and has the credentials that are the equal to or exceed those who are already sitting on the court. I mean,

it just seems stupid to me, like churlish. And you think politically counterproductive for them potentially? I do think it's politically counterproductive, just bad optics. We should say, however they decide to approach her, I have no doubt that she'll be tremendous. I rarely watch Court of Appeals confirmation hearings, but she was so good in her D.C. Circuit hearing. She will be unflappable. One other note about the announcement, which is I took President Biden to be making a quick plug for the podcast when he – I think he listens. Yeah, I think he's a listener when he suggested the court is just as important as the other branches of government.

So let's play that shout out here. And I've always had a deep respect for the Supreme Court and judiciary as a co-equal branch of the government. I mean it. The court is equally as important as the presidency or the Congress. It's co-equal. You're welcome, Mr. President. Exactly. You're welcome.

The court is very important. And so thank you. We're here, Mr. President. Exactly. You're welcome. The court is very important. And so thank you. We're here making that clear every day. Thank you, everyone, for listening. Strict Scrutiny is a Crooked Media production hosted and executive produced by Melissa Murray, Kate Shaw, and me, Leah Lippman. Produced and edited by Melody Rowell. Audio engineering by Kyle Seglin.

Production support from Michael Martinez, Sandy Gerard, and Ari Schwartz, with digital support from Amelia Montooth. Thanks for listening. Listeners, this is an important addendum, or maybe even an erratum. After we finished recording, it dawned on us that obviously Justice Kavanaugh is Dudley Dursley. We couldn't let this episode air without that important correction.