The Senate confirmed Ketanji Brown Jackson on Monday to the U.S. Court of Appeals for the District of Columbia, an influential court that has been a springboard for future Supreme Court justices.
Jackson is widely seen as President Biden’s top candidate for the Supreme Court, especially given his campaign pledge to make history and nominate the first Black woman when a vacancy arises.
The Senate vote was 53-44, with Republican Sens. Lindsey Graham of South Carolina, Susan Collins of Maine and Lisa Murkowski of Alaska crossing party lines to vote in favor of Jackson’s confirmation.
On the Court of Appeals, Jackson will be filling the seat of Merrick Garland, who was confirmed in March to serve as attorney general. Since being nominated by President Barack Obama in 2013, Jackson has been serving as a district judge in the U.S. District Court for the District of Columbia.
Before serving in that position, she was an assistant federal public defender and the vice chair on the U.S. Sentencing Commission. She also clerked for three federal judges, including Supreme Court Justice Stephen Breyer.
In recent months, Democratic activists have begun waging a public campaign aimed at pressuring Breyer, who is 82, to retire early in Biden’s term.
Progressive groups such as Demand Justice worry that if Democrats lose their Senate majority in the 2022 midterm elections, there could be a repeat of what happened in 2016, when Republicans blocked Garland from receiving a confirmation vote as Obama's Supreme Court nominee on the grounds that his nomination occurred too close to the presidential election. As a result, the seat was open for nearly a year, and then-President Donald Trump was able to fill it with conservative Justice Neil Gorsuch.
On Monday, Senate Minority Leader Mitch McConnell confirmed these fears, stating that it would be “highly unlikely” he’d allow Biden to fill a Supreme Court vacancy in 2024 if Republicans were to regain a majority in the chamber.
Still, activists are hopeful that Jackson’s confirmation can herald a new direction for the judiciary.
“Judge Jackson's confirmation will mark the beginning of a new era for a court system that Trump and McConnell have stacked in favor of the rich and powerful,” Christopher Kang, chief counsel for Demand Justice, told NBC News. “Judge Jackson’s experience as a public defender makes her a model for the type of judge President Biden and Senate Democrats should continue to prioritize."
In addition to being one of few Black women who have been confirmed to the federal appeals court, Jackson is only the ninth public defender to do so. During her April confirmation hearing before the Senate Judiciary Committee, she discussed how her experience as a public defender would benefit her approach to cases on the bench.
“One of the things that I do now is I take extra care to communicate with the defendants who come before me in the courtroom. I speak to them directly, and not just to their lawyers. I use their names. I explain every stage of the proceeding,” Jackson said.
At the same hearing she was questioned by Sen. John Cornyn, R-Texas, about how race would affect her job.
“I don’t think that race plays a role in the kind of judge that I have been and would be. I’m doing a certain thing when I get my cases,” Jackson replied. “I’m looking at the arguments, the facts and the law. I'm methodically and intentionally setting aside personal views, any other inappropriate considerations, and I would think that race would be the kind of thing that would be inappropriate to inject into my evaluation of a case."
Jackson also made it clear that she believed her perspective was still crucial to the court.
“I’ve experienced life in perhaps a different way than some of my colleagues because of who I am, and that might be valuable — I hope it would be valuable — if I was confirmed to the court,” she said.
One of Jackson’s better-known opinions came in 2019, when she ordered former White House counsel Don McGahn to comply with a congressional subpoena to testify about Russia’s interference in the 2016 presidential election.
McGahn, a key witness in Robert Mueller’s investigation, was called to testify by the House Judiciary Committee to determine if there were grounds for Trump’s impeachment. Trump ordered McGahn not to testify on the grounds that his role as the president’s close adviser had granted him immunity.
In her 118-page decision, Jackson declared that immunity “simply does not exist. … Presidents are not kings. This means that they do not have subjects bound by loyalty or blood, whose destiny they are entitled to control.” Instead, she said, “in this land of liberty, White House employees ... work for the people of the United States.” Last week, McGahn sat down for closed-door testimony.
Out of 82 total judicial vacancies, Biden has nominated 24 judges to date. On Tuesday he announced a fourth round of nominees from diverse backgrounds. Last week, the Senate confirmed Zahid Quraishi as the first Muslim American federal judge.
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