Against Judge Jackson

By Kevin D. Williamson

Sunday, February 27, 2022

 

Joe Biden has nominated Judge Ketanji Brown Jackson to the Supreme Court. Jackson shouldn’t be confirmed but probably will be. And before she is confirmed, she will be practically canonized, a process that already has begun with Senator Dick Durbin, who gushes that she is an “extraordinary nominee” with an “exceptional life story.”

 

That isn’t really true, and the fact that we are all expected to act as though it were true is a testament to the superficiality of that frank national conversation about race we’re always having.

 

Judge Jackson would be the first black woman to serve as a Supreme Court justice, but that is the opposite of extraordinary in a country that has had a black man serve as president and a black woman serve as secretary of state, currently has a black woman serving as vice president, and has had many other black men and women in its high offices.

 

Looked at through the prisms of race and sex, Judge Jackson seems like a great departure for the Supreme Court. Looked at straight-on, she looks precisely like what we would expect of a Supreme Court nominee.

 

An “exceptional life story”? Judge Jackson is the child of a lawyer who grew up to be a lawyer. Both her parents are college graduates, unlike three-fourths of the Americans of their generation. She didn’t grow up on the mean streets of Baltimore or Detroit — she went to the same high school as Amazon founder Jeff Bezos and Surgeon General Vivek Murthy, and she was the class president. She went to Harvard for her undergraduate studies and then moved on to Harvard Law, where she was an editor of the law review. (Every sitting justice except for Amy Coney Barrett of Notre Dame went to one of two laws schools — and I don’t even have to tell you which two, do I?) She clerked for Stephen Breyer, the very man she has been nominated to replace. Justice Breyer’s father was a lawyer for a school district; Judge Jackson’s father was a lawyer for a school district.

 

Not exactly an out-of-nowhere pick. She is as ordinary a nominee as you could imagine.

 

Americans don’t like to talk about it, but we do have a ruling class, and African Americans have been in it for a while now — long enough to produce such a perfect specimen of the genre as Ketanji Brown Jackson. Hurray for the meritocracy, and all that.

 

Judge Jackson has a résumé that looks a lot like almost every other Supreme Court nominee’s résumé. Ironically, the justice whose biography looks the least like hers is the only African American currently serving on the Court, Clarence Thomas. Justice Thomas has a truly exceptional life story: He was raised by his grandparents in utter poverty in a Gullah-speaking community in the Jim Crow South. He spent the first years of his life in a house with no indoor plumbing. He was a radical black nationalist in his youth, grew up to be a hero to conservatives, and may well be remembered as the most significant jurist of his generation.

 

There isn’t anything wrong with being an Ivy League–educated child of privilege. (Some of my best friends . . .) But we do not live in a country where it is particularly remarkable that a woman who grew up in an educated and comfortable family — and who attended the best schools, where she met all the right people — should rise to the top of her profession. That’s what the Ivy League is there for — you can get a good education anywhere.

 

Judge Jackson is well qualified for the position, judged by her résumé and by the fact that she has spent eight years on the federal bench (though less than a year in her current position on the Court of Appeals) without exhibiting any obvious misbehavior — except in one thing: She does not believe in the rule of law.

 

And that should be — should be — disqualifying.

 

Judge Jackson isn’t any worse than the justice she is replacing and very likely would be better than whoever is next on Joe Biden’s list, but, as a matter of principle, she should be opposed.

 

Justice Thomas is often — and dishonestly — described as a conservative justice or a right-wing justice. But what Justice Thomas actually is, is a textualist justice, which is a fancy way of saying that he is someone who believes that we write our laws down for a reason and that judges — including the highest judges in the land — are obliged to follow what the law actually says, rather than what they wish it said, what they think it should say, or their own idiosyncratic sense of fairness or morality. We call them “justices,” but they are not in the justice business — they are in the law business. And if achieving justice requires a change in the law, then the people must elect new lawmakers to make that change.

 

When judges follow the law as it is written, we have the rule of law. When judges follow their own sensibilities and moral intuitions, then we have a judicial oligarchy. Justice Thomas’s supposed radicalism is his insistence that the law must be applied as it is written and that Supreme Court precedents that are not based on the law as it is written should be disregarded when challenged. That is, of course, the opposite of radicalism, but we live in upside-down times.

 

Judge Jackson is thoroughly a product of her class, and, unhappily, she embodies its biases and subscribes to its ideology — if she did not, she would not be Joe Biden’s nominee, irrespective of her ticking the desired race and sex boxes on the job application.

 

And though Republicans surely will be denounced as sexists and racists and whatnot for doing so, they should oppose her nomination, however hopelessly, on those grounds.