Senate committee to take up Biden judicial nominees in preview of potential Supreme Court fight
By Ann E. Marimow and Paul Kane,
The Senate Judiciary Committee will take its first look next week at President Biden’s initial batch of judicial nominees in what could serve as a preview of the next battle over the Supreme Court, with many Democrats hoping to soon have a vacancy on the high court that can be filled by a young, liberal justice.
Democratic lawmakers are moving quickly to review Biden’s nominees to take advantage of their slim majority in the Senate and begin to remake the courts with judges from diverse personal and professional backgrounds. All five nominees under consideration next Wednesday are people of color, including two Black women nominated to federal appeals courts in Washington and Chicago, and a former New Jersey prosecutor who would be the nation’s first Muslim American to serve on a federal trial court. In contrast, President Donald Trump’s picks were mostly White men.
The hearing featuring Judge Ketanji Brown Jackson, who is up for the influential U.S. Court of Appeals for the D.C. Circuit, could be a preview of what she would face if she is eventually nominated for a potential vacancy on the Supreme Court.
Many senators are keeping an eye across the street, awaiting word whether Justice Stephen G. Breyer, 82, will step down. Democrats have not overtly pressured the court’s oldest justice to retire, but privately they are hopeful he will step aside for a younger liberal while the party retains a majority — one that could disappear in the 2022 midterms or through an untimely illness that relegates them to minority status.
“Justice Breyer has been a great justice and he recognizes, I am sure, the political reality of our having control of the Senate now. But elections always have risks, so hopefully he’s aware of that risk and he sees it accordingly,” Sen. Richard Blumenthal (D-Conn.), a Judiciary Committee member, said in an interview this week.
While discussions have been muted, Blumenthal said the president and Senate Democrats need to be ready to move as swiftly as Republicans did to fill openings at all levels of the judiciary. Trump, working with then Senate leader Mitch McConnell (R-Ky.), installed more than 200 judges, including three Supreme Court justices.
“Whether it’s on lower-court judges or a potential Supreme Court vacancy, we have no time to waste,” Blumenthal said.
Republicans are also aware that next week’s hearing has implications for a possible upcoming Supreme Court fight, noting the importance of the D.C. Circuit when it comes to reviewing government policies and as a steppingstone to the high court. One-third of the current justices previously served on the appeals court bench in Washington.
“I don’t think it should be treated any differently than any other circuit court, but I’d say that I’m mindful of the fact that it is, historically, a proving ground, if you’d like, for Supreme Court nominees,” said Sen. Josh Hawley (R-Mo.), who sits on the Judiciary Committee. “It’s certainly more, I think, than any other one circuit . . . so I would approach it with that in mind.”
The slate of nominees scheduled to appear before senators next week reflects Biden’s promise to emphasize diversity and a wide range of professional experience when picking judges.
Among the five nominees before the committee next week are two former public defenders, two former prosecutors and a county attorney and administrator. Candace Jackson-Akiwumi, an experienced public defender and current litigator in Washington, is nominated to the 7th Circuit. In 10 years at the Federal Defender’s office in Chicago, Jackson-Akiwumi represented 400 indigent clients accused of a wide range of federal crimes. She would be the only non-White judge currently sitting on the Chicago-based appeals court.
For the District Court in New Jersey, Biden’s nominees are Zahid N. Quraishi, a magistrate judge and former federal prosecutor; and Julien Neals, county counsel and acting Bergen County administrator. Regina Rodriguez, a former federal prosecutor, is nominated for the District Court in Colorado. Both Neals and Rodriguez were previously tapped by President Barack Obama, but their nominations stalled in the Republican-controlled Senate.
Much of the attention at the hearing, however, is expected to center on Jackson, a former Breyer law clerk and public defender who was also an Obama nominee on the U.S. Sentencing Commission.
Jackson, 50, was unanimously confirmed by the Senate in 2013 to the District Court after her nomination by Obama.
If confirmed to the D.C. Circuit, Jackson would succeed Attorney General Merrick Garland, who served on the appeals court for 24 years. Jackson was first contacted by White House counsel Dana Remus in late January about the potential opening on the D.C. Circuit, according to her 116-page Senate questionnaire. She met with Biden at the White House in late February to discuss her nomination two weeks before Garland was formally confirmed by the Senate.
Brian Fallon, co-founder of the liberal interest group Demand Justice, said Jackson’s hearing will be used by both sides as a warm-up for a possible Supreme Court vacancy. He predicted a narrow confirmation vote, as most Republicans, he said, would not want to back Jackson and then potentially have Biden tout their support in the coming months if he tries to elevate her to the high court.
“There will just be a lot of polarization on this vote,” said Fallon.
Liberal activists have been vocal in their call for Breyer to retire while Democrats control the White House and the Senate. They emphasize the urgency of the situation by pointing to the death last year of Justice Ruth Bader Ginsburg at age 87, which led to Trump nominating and the Senate confirming conservative Justice Amy Coney Barrett to replace the liberal icon.
Biden has promised to nominate the first Black woman to the Supreme Court. In addition to Jackson, Fallon’s group has researched another leading candidate, California Supreme Court Justice Leondra R. Kruger. If there is an opening, Fallon said the group is ready to immediately begin an ad campaign if either Jackson or Kruger is Biden’s pick.
In eight years on the District Court bench in Washington, Jackson has written more than 550 opinions and been reversed nine times, according to Jackson’s questionnaire. Two other rulings were vacated on appeal and returned to the lower court, and in three cases, the D.C. Circuit affirmed her judgment, but criticized the substance of her ruling.
Republicans are likely to press Jackson about a series of rulings against the Trump administration that had mixed results on appeal. In 2018, she sided with labor unions in a challenge to restrictions on collective bargaining. Separately, she issued a nationwide preliminary injunction that blocked the Trump administration from dramatically expanding its power to deport migrants who illegally entered the United States by using a fast-track deportation process.
Jackson cites as most significant her opinion rejecting the Trump administration’s effort to block a congressional subpoena for testimony from former White House counsel Donald McGahn. Jackson wrote in 2019 that “presidents are not kings” and do not have the power to prevent aides from responding to legislative subpoenas on the basis of “absolute testimonial immunity.”
Retired judge Thomas B. Griffith was part of a three-judge panel that twice reversed Jackson’s ruling in the McGahn case, but he has also endorsed her nomination. He told the committee in a letter this week that Jackson’s “record of excellence” throughout her academic and professional career would prepare her well for service on the D.C. Circuit and “carry on the tradition of collegiality that has been the hard-won hallmark” of the court.
Griffith, a nominee of President George W. Bush, wrote the panel opinions reversing Jackson in rulings that were subsequently vacated by the full D.C. Circuit, where the case is still pending and scheduled for argument in May.
“Although she and I have sometimes differed on the best outcome of a case, I have always respected her careful approach and agreeable manner, two indispensable traits for success in a collegial body,” wrote Griffith, who was previously chief legal counsel to the Senate.
Democrats are likely to highlight her rulings denying police officers’ claims of immunity from legal liability for arresting a protester after he used profanity and another case in which she held that prison officials had acted with “deliberate indifference” to a deaf inmate’s request for accommodations.
Senior Democrats say they see no risk in having a hearing for Jackson in April, with a confirmation vote for the D.C. Circuit a few weeks later, and then another, higher-profile set of hearings if Breyer retires and she is selected to succeed him.
“If she’s going to go on the Supreme Court, she’s going to go on the Circuit,” said Sen. Patrick J. Leahy (D-Vt.), a senior committee member who chaired confirmation hearings for two justices. “She’s qualified. She ought to be confirmed.”
Leahy noted the precedent for a quick stint on the appeals court before landing at the high court. Chief Justice John G. Roberts Jr. served two years on the D.C. Circuit before President George W. Bush nominated him to the Supreme Court. Justice Clarence Thomas had an even shorter tenure, confirmed to the appeals court in March 1990 and then nominated by President George H.W. Bush to the Supreme Court less than 16 months later.