On Friday, February 25, President Biden announced his much-anticipated Supreme Court nominee, Judge Ketanji Brown Jackson. This was always going to be an historic nomination, but Judge Jackson is certainly made for the moment. Her credentials make it hard for naysayers to challenge her as unqualified. She has clerked at every level of the federal judiciary, including as a law clerk to the Justice whose seat she will likely fill. She has been confirmed by the Senate three times—for a stint on the U.S. Sentencing Commission and for two federal judgeships. Although she has practiced as a commercial litigator in private law firms, much of her pre-judiciary career was spent as a public defender representing indigent clients in the criminal justice system. In addition to bringing gender and racial diversity to the Court, Judge Jackson brings an unmatched diversity in her professional experiences.
Now that Judge Jackson has been announced as the nominee, the news cycle will shift to focus on her particular qualities and the perspectives she will bring to the bench. But before we shift, it is worth considering some of the rhetoric and discourse that preceded her nomination. When Justice Breyer announced his retirement and President Biden reiterated his intention to appoint the first Black woman to the high court, the chatter was relatively predictable. Some on the right chided the President for the specific choice of a Black woman, willfully oblivious to a lengthy history in which prior presidents, including Ronald Reagan, had also vowed to place a person from a specific constituency on the high court. Georgetown Law’s Ilya Shapiro came out of the gate hot, insisting that the decision to name a Black woman to the seat ensured that the candidate would be less qualified than other alternatives. It is worth noting that no one had actually been nominated, meaning Shapiro was essentially suggesting that any Black woman was per se unqualified. Deep sigh. Not to be outdone, Senator Ted Cruz announced in a television interview that Black women only represented 6% of the American populace, meaning that this nominee would only be able to speak to the concerns of a narrow 6% of the body politic. This was, of course, laughable. Tellingly, Cruz did not question whether the 100+ white male nominees previously appointed to the Court were ill-equipped to represent the interests of 45% of the American public.
None of these narratives was surprising. Indeed, they were utterly predictable. But what was surprising was the persistence of the narrative that, in addition to race and gender diversity, the nominee should reflect diversity in her educational background as well. Specifically, it would be preferable if the nominee was educated at non-Ivy League/non-elite institutions. And meaningfully, this narrative had bipartisan appeal. In his full-throated endorsement of Judge J. Michelle Childs’s candidacy, Representative Jim Clyburn lauded her state school credentials. On the morning Judge Jackson was announced as the nominee, Senator Lindsey Graham tweeted that “The Harvard-Yale train to the Supreme Court continues to run unabated.”