The NPR Politics Podcast - Ketanji Brown Jackson Confirmed To The Supreme Court

Episode Date: April 7, 2022

The vote was 53 to 47, with three Republicans joining the Democratic caucus in support of Jackson's nomination. When sworn in this summer, she will be the first Black woman on the Supreme Court.This episode: demographics and culture correspondent Danielle Kurtzleben, legal affairs correspondent Nina Totenberg, and national justice correspondent Carrie Johnson.Connect:Email the show at [e-mail] the NPR Politics Podcast Facebook Group.Subscribe to the NPR Politics Newsletter.Find and support your local public radio station.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Hi, I'm Maddie, and I recently moved from North Dakota to North Carolina. Turns out the childhood ritual of putting your pencil in the freezer when we wanted a snow day works as an adult trying to get the student loan payment pause extended. This podcast was recorded at 3 15 p.m. on April 7th, 2022. Things may have changed by the time you hear this, but I'll still be waiting for my pencil to thaw. All right, here's the show. Wait, is that a thing?

I never heard of that. Moreover, who uses pencils? Bless your heart. Wow. Can it be mechanical? I have a lot of questions, but... Me too. Hello there. It is the NPR Politics Podcast. I'm Danielle Kurtzleben. I cover demographics and culture. I'm Nina Totenberg. I cover the Supreme Court.

And I'm Keri Johnson, National Justice Correspondent. And it is a historic day. Katonji Brown-Jackson will be the first Black woman to serve on the nation's high court. She was confirmed by the Senate in a vote this afternoon. All 50 people who caucused with the Democrats voted for her, and they were joined by three Republicans, Senators Mitt Romney of Utah, Susan Collins of Maine, and Lisa Murkowski of Alaska. As we said, this was a historic moment. It was the fulfillment of a campaign promise that Joe Biden made when he was running for president. Vice President Kamala Harris was presiding in the Senate chamber today. On this vote, the yeas are 53, the nays are 47, and this nomination is confirmed.

I just said this is a historic moment. We have the first Black woman on the Supreme Court. I'm curious if you guys, just as experts on this, could reflect on how historic this is. I don't think I can put myself quite in the position of the way Black women feel today about this nomination and this nominee now confirmed justice to be. But I do recall what it felt like when Sandra Day O'Connor was named as the first woman to the court at all. And I'd been covering all men for quite a while already. And every woman I knew, regardless of their political views, just was thrilled by this nomination. It was such a special moment. Every woman I knew felt just had goosebumps. And I imagine that especially today, Black women feel that way. You know, I've seen some video of women's groups who were in meeting rooms watching this Senate

vote and the sense of jubilation, the sense of joy, the dancing, to some extent that I saw, the taking of the selfies. I mean, it was a really happy moment. And the other thing that I would say is this, one of the main things that I will remember forever from these confirmation hearings was now Justice Jackson's memory of being a new student at Harvard where it was very cold. She'd grown up in Miami and she was having a very sad moment in her first year with the transition. She said she was sitting on the steps, I think of the library at Harvard, just in despair, covered with a scarf and a hat and kind of in a state of sadness. And someone who worked at the college or somebody affiliated with Harvard College walked by,

another black woman looked at her and said, persevere. And today, Danielle and Nina, I am seeing those words everywhere, superimposed with Katonji Brown Jackson's picture or artwork of her. That is going to become something that is really a relic of this historic moment. And also, this is the most bipartisan Supreme Court confirmation there's been since Neil Gorsuch. It's what counts as bipartisan these days. Three Democrats voted for Gorsuch in 2017. And as I said, three Republicans voted for Jackson today. How did the tenor of these hearings, this confirmation process, compare to other recent

confirmations? Nina, let's start with you. Well, we have to exclude, first of all, the Kavanaugh hearings, for example, or Justice Thomas's second round of confirmation hearings. So you really have to look at the hearings as they're supposed to be about the nominee without some scandalous thing coming to the fore that has to be looked at. And if you do that, I think it's fair to say that Judge Jackson was treated by some Republicans, not all, but some without much respect. I don't think you could say that she was treated respectfully. And that may redound to their benefit in some political ways and their unbenefit in other ways. But in the end, I think her sort of stoicism and sitting through basically almost 25 hours of questioning,

worked to her benefit, and she came out looking like she had integrity, judicial temperament, and clearly she has experience, and it served her well. The notion that President Biden had picked somebody who wasn't qualified, that really never, that was not cream that rose to the top ever. Carrie, what were your takeaways from these hearings? You know, we sat, Nina and I and other of our colleagues, through almost all of those 25 hours of questions and answers. And this is a nominee, now a confirmed justice, who has not yet been sworn in, but a woman who has clerked at every level of the federal judiciary, who had a record of something like nearly 600 rulings,

and they spent very little time, very little time talking about her actual record. I was really struck today by an op-ed by Anita Hill, the law professor who knows from mistreatment by the Senate Judiciary Committee, talking about how the treatment of Judge Jackson, in her view, was shameful. And that even though she rose above it, like Nina said, it was a very dark moment for some of the senators and a sign that the process is broken, perhaps irreparably. The other thing that really struck me today is that Mitch McConnell, in an interview with Axios, basically refused to answer whether, if he controlled the Senate in 2023, whether any possible nominee for President Biden to the Supreme Court would even get a hearing. That is also a dark sign for where we may be headed in the future. Okay, you've both gotten at this notion of political theater being a big part of these hearings. And that is something we should acknowledge here is that this process is really frustrating. I mean, on the one hand, it's important to learn about the nominee. But on the

other hand, there is so much grandstanding that goes on during these hearings. So I'm curious about what you think. To what degree do you both think these hearings are useful at this point? The moments of real dialogue were few and far between. We had a really good extended dialogue about the limits and the scope of the Fourth Amendment in the Information Age, which I would have loved to have heard more about. I would have loved to have heard more in these hearings about the tension between religious liberty and a number of civil rights statutes that keep coming up before the court and are going to keep coming up moving forward in the next 20 or 30 years. But those were just tiny nuggets, not anything extensive the way that some of these

hearings used to be 20 and 30 years ago. All right, we're going to take a quick break, and we will have more in a second. And we're back. And Katonji Brown Jackson is replacing a man she clerked for, Stephen Breyer, who was known for an apolitical conception of the court. That's a conception that was based on differences in philosophy rather than political ideology. And I know you know this, Nina. He said this much in a conversation with you on this podcast last year. But at this moment, Jackson is joining the court. That doesn't really line up with how the country sees the court. Our country is sharply partisan, and the conservative majority is taking up really,

really hot-button issues. So what sense do we have of how Jackson sees that distinction between philosophy and political ideology? Where does she fall on that spectrum? Well, we don't know yet. That's one of the fun parts about covering the Supreme Court. But I think you could say realistically that anytime one member of the court leaves, that's one-ninth of the court that's gone and replaced by somebody entirely different. So you can't predict how this is all going to shake out. The one thing I think you can be reasonably certain of is that there is and will remain a conservative supermajority on the court, meaning that there are five votes. They don't even need a sixth,

but they have a sixth. They have one to play with if they want. And there will be three moderate to more liberal liberals. And that's not going to change with this nomination. Mm-hmm. Well, and since, as you say, the ideological balance of the court won't be liberals. And that's not going to change with this nomination. Well, and since, as you say, the ideological balance of the court won't be changing, with that in mind, are there particular issues where we should expect her to make her mark? Carrie, I'm curious, you brought up the Fourth Amendment earlier. Yeah, I think that on these issues of criminal law, she's poised to make a potentially big difference, if not always winning in the majority, then at least raising issues that might not have been raised without her presence. She, of course,

is the first former public defender to be elevated to the Supreme Court. She has lots of experience working on criminal cases and criminal appeals. And she sat on the U.S. Sentencing Commission, which makes sentencing policy for the entire country, advisory sentencing policy for judges. So she's got a really in-and-out, nuts-and-bolts view of criminal law. So far, Justice Sotomayor fresh approach and potentially in some areas, maybe pick off a conservative or two to go to her side. All right, final question, a basic question. When does Jackson formally take her seat? And do we know what kind of issues we might get to see her initially weigh in on? Well, she'll take her seat probably at the end of June or beginning of July when Justice Breyer steps down at the end of the term.

The docket is already partly set for next year, and the court has already taken two very big controversial issues. One is affirmative action in higher education, and she indicated at the hearing that she would recuse herself from the Harvard case because she was on the Harvard Board of Overseers. So she said she would view that as a conflict of interest because Harvard's one of the defendants, as it were, on this issue. But there is a separate defendant, and that is the University of North Carolina. And so she might conceivably participate in the North Carolina case, but not the Harvard case. And then there's a case involving when and whether states under civil rights laws can require everybody, every business, to serve everyone, including LGBTQ people, if the owner of the business thinks that's a violation of their religious rights. That's a big deal. Yeah, that's a violation of their religious rights. That's a big deal. Yeah, that's going to be a big one. And I'm also watching this Alabama case involving redistricting and voting rights.

The Supreme Court and the lower federal courts have been very, very hostile to the Voting Rights Act in recent years. And that could be another dark day for voting rights advocates next term. All right. Well, a lot of stuff that we will be watching and reporting on here. Until then, thanks to the both of you. I'm Danielle Kurtzleben. I cover demographics and culture. I'm Nina Totenberg. I cover the Supreme Court. I'm Carrie Johnson, national justice correspondent. And thank you for listening to the NPR Politics Podcast.