Today, Explained - Ketanji Brown Jackson

Episode Date: February 28, 2022

President Joe Biden’s Supreme Court nominee is historic but may have little impact on American law. Vox’s Ian Millhiser explains. This episode was produced by Will Reid, edited by Matt Collette, engineered by Cristian Ayala, fact-checked by Laura Bullard and hosted by Sean Rameswaram. Transcript at vox.com/todayexplained  Support Today, Explained by making a financial contribution to Vox! bit.ly/givepodcasts  Learn more about your ad choices. Visit podcastchoices.com/adchoices

Get groceries delivered across the GTA from Real Canadian Superstore with PC Express. Shop online for super prices and super savings. Try it today and get up to $75 in PC Optimum Points. Visit Superstore.ca to get started. Good afternoon. 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 here in the United States of America. On Friday, President Joe Biden announced his nominee to replace retiring Justice Stephen

Breyer on the Supreme Court of the United States. A daughter of former public school teachers, a proven consensus builder, an accomplished lawyer, a distinguished jurist, on one of the nation's most prestigious courts. My nominee for the United States Supreme Court is Judge Katonji Jackson. On the show today, Vox's Supreme Correspondent, Ian Millhiser, is going to help us understand why Jackson's historic nomination might not feel quite as game-changing as it should. No, I mean, this is an important moment in that we have reached

a point as a country where we are hopefully going to have a black woman on the highest court. And that is that is very important. The problem is that she is going to be a black woman on the highest court that has a six to three Republican supermajority. And she is replacing one of the few liberals on the Supreme Court. So, you know, she will be younger than Justice Breyer, who she is replacing. She will be a black woman while Justice Breyer is a white man. But she will still be on a Supreme Court that is absolutely dominated by movement conservative ideologues. OK, well, before we talk about the implications or the lack thereof, let's talk about the nominee. Who is she? So Katonji Brown-Jackson.

I must begin these very brief remarks by thanking God for delivering me to this point in my professional journey. She is a longtime federal judge. She's been a federal judge since 2013. And last year, President Biden appointed her to the D.C. Circuit. After the Supreme Court, the D.C. Circuit Court of Appeals is the most important federal court in the country. And Judge Jackson, nominated to the seat once

occupied by the current attorney general, is the perfect person for the job. And she's a conventionally qualified nominee. Went to Harvard Law School, clerked for Justice Breyer. 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. So in a different world, I would expect her to be confirmed by a fairly lopsided vote. And when we spoke to you just about a month ago, when Justice Breyer retired, you predicted that Judge Jackson would be the nominee.

Was this just a sort of done deal way back then? How long have we known that she would be the nominee? I mean, it wasn't a done deal. Jim Clyburn, who's a very powerful member of the House and a close ally of President Biden's, pushed a different candidate, Michelle Childs, who's a judge in South Carolina. But I mean, there were all sorts of signs that Jackson was the front runner. President Obama had interviewed her for a Supreme Court vacancy in 2016. She's a former public defender, and she's someone who has been in the mix as a potential Democratic nominee for a long time. And she's a Black woman, and President Biden had promised to appoint a Black woman.

If I'm elected president and have an opportunity to appoint someone to the courts, I'll appoint the first Black woman to the courts. It's required that they have representation now. It's long overdue. So, you know, I mean, there wasn't any certainty when Breyer announced his nomination that she would be the nominee. But if you're a betting person, she was the odds-on favorite. How does she become a judge? Tell me a bit more about her path. So she went to Harvard twice. Twice. Twice, both for undergraduate and for law school. When she was at Harvard undergrad, she met her husband, who is now a surgeon, but is also a, I guess, related to former Speaker Paul Ryan.

Woodchuck's eating Paul Ryan's car has given me hope for the future. My car dealer as well. The Republican who until fairly recently was one of the top Republicans in the country. How is she related to Paul Ryan? So I actually had to write this down or like more accurately, I asked your producer to write this down for me. Thank you, William. She is Paul Ryan's wife's sister's husband's brother's wife. Wait, what? Paul Ryan's wife's sister's husband's brother's wife. So her husband has a twin. Her husband's twin is married to Paul Ryan's wife's sister. There will be a quiz on this at the end of the episode for everyone who yeah who is following along so basically she and paul ryan are strangers i mean they know each i mean actually one thing that's very interesting is that when she was initially nominated to the federal bench paul ryan introduced her before the

committee he sent you know a very kind tweet after she was nominated oh saying that while he doesn't agree with her politically on a lot of things, he respects her intellect, respects her drive. So that's nice. Yeah. I mean, I don't know how much juice Paul Ryan has in a Republican Party that has become less libertarian and more authoritarian than it was when Paul Ryan was in charge. But, you know, she does have this one very prominent Republican relative. Well, I want to know more about her politics now, but let's talk about her time as a lawyer. So she starts as a public defender. She didn't start as a public defender. I mean, she starts like I think many Harvard grads do at a law firm because that's that's how you pay off those loans.

But she quickly transitioned into public service. She worked on the sentencing commission, which is a federal agency. And what they do is they draft guidelines that are used by every federal judge to determine what the appropriate sentences should be when someone is convicted of a crime. After work at the Sentencing Commission for a while, she was like, what am I doing setting sentencing policy if I don't really have enough experience in the trenches with what the criminal justice system looks like? So she became a federal public defender and she did that for a few years, mostly arguing appeals in front of the D.C. Circuit, the court that she sits on right now. The most interesting thing that she did is that she wound up doing a fair amount of work on behalf of Guantanamo Bay inmates. She had a client who was a Guantanamo Bay inmate. About 16 years ago when I was a federal public defender. Okay, and was that case assigned to you as a federal public defender? It was.

Who was the client that you had? Oh, Senator, I don't remember the name. Okay, could we get back? She would go on because she developed expertise as a public defender on Guantanamo Bay. She would go on to write some amicus briefs about Gitmo policy. There was, as you'll remember, during the Bush administration, a big fight over what sort of legal process these inmates should have. That by prohibiting Colonel Davis from testifying, the administration is trying to stop a fair and open discussion about the legal rights of detainees at Guantanamo. Whether they're entitled to any legal process at all, whether they would get into a real court or a tribunal.

What needs to be done with detainees who can't be charged? And what legal rights should all detainees be afforded? And she was one of the lawyers, one of the many lawyers who was arguing that, you know, there should be adequate process for these individuals to determine that they actually belong in, you know, a military prison. Seems fair. The thing about public defense work is that typically a public defender handles the cases that are assigned to them. And everything that I have seen and heard about her record as a public defender is she was just

a really competent advocate. She wanted to do that kind of service work. She took the clients that were assigned to her and she did, you know, an effective job of finding legal errors in their convictions and their sentences. And then she got appointed as the vice chair of the sentencing commission at a really auspicious time for her to take on that role because Congress had just passed a law that reduced sentences for a lot of drug offenders and specifically for people caught with crack cocaine.

OK, but that law wasn't automatically made retroactive. And so as a sentencing commissioner, one of the big things that she helped push was trying to make that policy retroactive. So a lot of people who are already in prison for often very minor drug offenses wound up getting years slashed off of their sentences because this new law was made retroactive for them. Do you think she was on this sort of public defender sentencing commission trajectory because she was always trying to be a judge one day? I mean, she said when she was very young that she wanted to be a judge. But I mean, federal judgeships are hard to get. I don't know that anyone could really plan their life around becoming a judge, much, much less a justice.

There's always a certain amount of luck involved. And she is very lucky in that she was in the right place when Joe Biden happened to be president, because in the past, judgeships have typically gone to law firm partners. They've gone to prosecutors. You know, they've gone to people who are part of the system and often people who make a lot of money being part of the system and can make lots of donations to senators. And President Biden has worked very hard to put people in judgeships who do not necessarily have that background. He's appointed quite a number of public defenders. He's appointed quite a number of civil rights lawyers to the federal bench. You know, he has been looking for candidates who have done a very particular kind of public service work where they were

representing the most vulnerable people in society. And so, you know, Jackson's career trajectory, you know, if I was advising her in, say, 2008, what should you do for the next few years to set yourself up for a judgeship? I wouldn't have told her become a public defender because that wasn't a common path for someone to become a judge. She is fortunate in that she happened to be well positioned for the Supreme Court at the time when we have a president who is particularly interested in appointing judges with her background. More with Ian and that quiz he promised after these messages from our sponsors. Support for Today Explained comes from Ramp. Ramp is the corporate card and spend management software designed to help you save time and put money back in your pocket.

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If you have any questions or concerns about your gambling or someone close to you, please contact Connex Ontario at 1-866-531-2600 to speak to an advisor free of charge. BetMGM operates pursuant to an operating agreement with iGaming Ontario. Ian, you mentioned earlier that Paul Ryan probably doesn't like his wife's sister's husband's brother's wife's politics very much. What are her politics? I mean, the answer is that's actually a pretty good question. I mean, I don't have any reason to doubt that she'd be a very conventional

Democratic nominee in the vein of someone like Stephen Breyer or Elena Kagan or someone like that. And I do think that, you know, when someone chooses to become a public defender, when someone chooses to focus on sentencing policy at a time when the federal government is thinking, how can we make sentences less harsh? I mean, that does say something about their core political commitment. Fair. lot of very technical cases dealing with questions about which federal agency has the power to do what and which courts have the power to review actions by federal agencies. And these are often extraordinarily important cases, but they aren't the sort of cases that produce a lot of headlines. And until very recently, they haven't been very political. I mean, some of these cases have become political because the Republican Party has wanted to tamp down the ability of federal agencies to do very much.

But that's a new development. For the most part, she's been dealing with very technical questions, very difficult questions. I think she showed a great deal of technical expertise in her opinions, but very few of the things that she's done as a judge tells me much at all about her politics. Does she have any sort of landmark cases from that era as a federal judge? So the case that I think is probably going to get the most attention is her ruling in a case called McGahn. And the McGahn in that case is Donald McGahn, the former White House counsel under Trump. I hear he plays a mean guitar. Oh, yeah. Played a mean guitar and Trump didn't want him to talk about Russia.

So McGahn was subpoenaed by the House to talk about the broader Russia investigation regarding Russia's potential interference with the 2016 election. Trump didn't want him to testify. The Trump Justice Department raised a lot of, frankly, very sketchy legal arguments claiming that, you know, the president has an absolute right to say that his advisers can't testify in front of Congress. And Jackson wrote what was really a very measured opinion. to say that his advisors can't testify in front of Congress. And Jackson wrote what was really a very measured opinion. Some very harsh words from this judge who says over 250 years of U.S. history. I mean, you know, people quote this one line from it, presidents are not kings, which was rhetorically very interesting. But the actual holding of that decision was that

McGahn did have to physically present himself to the committee. But while he was there, he could invoke executive privilege and he could like say in response to questions, oh, I can't answer that because it's privileged. And then they'd have to have a whole legal fight over the privilege. So it was a very narrow decision it wound up going up to an appeals court and it got bottled up in the appeals court for like a year and a half until finally president biden won and mcgann struck a deal with congress where he just went ahead and testified after donald trump was no longer in office so the case wound up generating a whole lot of heat but it didn't really matter all that much and you know and one big reason it didn't matter all that much is because it didn't really go that far out on a limb. I mean, even if Jackson's view had prevailed, what that would have meant was that McGahn would have had to physically sit in a seat and he probably would have said the words, well, I'm not going to answer that question because of executive privilege over and over again. Doesn't sound that controversial. A nominee. Is that part of what President Biden may have liked about Judge Jackson? Democratic president faces is, you know, the Senate is malapportioned. Republicans effectively

get extra seats in the Senate because of all these small red states that have very few people in them. And yet they still get two senators just like California, which is an enormous state with nearly 40 million people in the current Senate. The Democratic majority and the Republican minority are both 50 seats. The reason why the Democrats have the majority is Kamala Harris gets a tiebreaker vote. But even though they have the same number of seats, Democrats represent 42 million more people. So it's just hard to confirm a Democrat to the Supreme Court. Ask Merrick Garland how that went.

Democrats have to really crush a few elections in a row in order to have the narrowest majority in the Senate. And given that sort of unfair imbalance, it means that I think Democratic presidents often have to be very cautious in who they nominate. And someone whose record doesn't have a lot of red flags that are likely to, you know, upset Republicans is easier to confirm than someone who's more of a bomb thrower. I think the last time you were on our show talking about Breyer's retirement and Judge Jackson herself, Ian, you mentioned that she's already been up for Senate confirmation with a Senate with the similar makeup as the one we have now, right? She was up for confirmation to the D.C. Circuit last year.

So in front of the exact same Senate. The exact same Senate. How did it go then? She was confirmed. She even got three Republican votes, Collins, Murkowski and Graham. And one thing that really stood out to me when I was going back looking at her past confirmation is, you know, so she had a confirmation hearing,

I believe, in April of 2021. Today, the Senate Judiciary Committee will hold its first judicial nominations hearing of the 117th Congress. At that point, everyone knew she was a leading contender for the Supreme Court. Like, you know, specifically Republican opposition researchers knew that she was a likely Supreme Court nominee. As in the kinds of people who dig up dirt on likely Supreme Court nominees? Exactly. The people whose job it is to rough up Katonji Brown Jackson knew that it was in their interest to rough up Katonji Brown Jackson. And they came up with very little. I mean, like her. It was a weird confirmation here. Like,

you know, Chuck Grassley and Mike Lee, who are normally very partisan Republicans, mostly asked her very wonky questions about sentencing policy. Can you explain how your views differ from Judge Pryor's or specifically, why do you trust judges with more discretion when it comes to sentencing than Pryor does? Thank you for that question, Senator. And first, let me just say... You know, there was this weird exchange with Senator Tom Tillis,

the Republican from North Carolina, where he attacked her because Rachel Maddow, the MSNBC host, once praised her McGahn opinion. If the production crew can run the video clip of Ms. Maddow, do so now. There were a few senators who attacked her because an organization called Demand Justice, which is just one of the many left-leaning organizations that work on judges in Washington, D.C., supported her nomination. People would ask her what her relationship was with Demand Justice, and she said,

I don't have a relationship with Demand Justice. So like Republicans were making the sort of attacks that you make against someone where you feel like you have to attack them, but you don't have anything really to work with. Like, I mean, it was just very surprising to me that in this very high stakes confirmation hearing where every Republican senator had to know that if she made it to the D.C. circuit, there was a very good chance she was going to be a Supreme Court justice, that they just weren't able to dig up any real dirt on her. But all the same, most Republicans in the Senate did not vote for her. Right. And then she got three Republican votes. So, you know, I think the general problem you

have with the Supreme Court right now is you have two overlapping problems. One is the Senate malapportionment that I mentioned earlier. And the other is that the Supreme Court is just too damn powerful. Like every time there's a vacancy, we're appointing one of the nine Supreme leaders who have the power to veto any law that they want. And so each Supreme Court fight is a huge existential battle. It is intolerable to either party that a member of the other party should get to sit on the Supreme Court. And so Republicans are overrepresented in the Senate and they have this huge incentive to oppose anyone that Biden nominates, no matter how qualified that person is, no matter how

unoffensive that person is. And I just think you're going to see that dynamic play out again. I think she's very likely to be confirmed, but I think it's probably going to be a narrow vote for that reason. And once she's appointed, if she's appointed, she doesn't do much to shift the power balance on the court. Right. Yeah.

I mean, the court will look very different than it did, you know, even, you know, a couple of decades ago. You know, not only will she be the first black woman on the court, there will be four women on the Supreme Court for the first time ever. So, you know, we're finally achieving something close to gender parity on the Supreme Court. But all of this is happening at a time when the court is dominated by very, very conservative ideologues. And I don't see anything in her record that suggests that she's going to vote very differently from Justice Breyer, the man she's replacing. But Breyer

spent a lot of time writing dissenting opinions and joining dissenting opinions in the big cases these last few years. But all the same, first black woman on the court, almost gender parity on the court for the first time in its history. That is progress. It is. I mean, and it's, you know, it's sort of the paradox of living in the United States in 2022. On the one hand, I think we have a more equal society than we've ever had. We have more people who are not white men in part by backlash to the progress that we've seen is pushing very hard to undo much of that progress. Our show today was produced by Will Reed, edited by Matthew Collette, engineered by Christian Ayala, and fact-checked by Laura Bullard. I'm Sean Ronis for him, and it's time for our quiz. Hello?

Ian, can you hear me? Yep, I can hear you. Do you have any idea why I'm calling you? I don't know why you're calling me. Okay, you mentioned earlier in the show that there would be a quiz at the end of the episode. This is the quiz. Oh, no. I'm sorry, Ian.

I'm sorry to do this to you. But how are Paul Ryan and Judge Jackson related? God, I'd have to look at my notes. It's like someone has a twin brother who's married to someone. Don't ask me to pass my own quiz. That's not fair. I'm going to give you partial credit. Wife's sister's husband's brother's wife.

You know, I mean, the one thing I will say for Judge Jackson, it is a tribute to her ability to maintain relationships in this town that she has managed to work Paul Ryan into her ethos despite this very distant relationship. Yeah, another acceptable answer would have been basically perfect strangers. Yeah, this is not a close relationship. Thank you, Ian.

All right, thank you.