Ketanji Brown Jackson

Ketanji Brown Jackson will likely be confirmed to the Supreme Court in a pick that has wide appeal to the left, makes libertarians breathe a sigh of relief, and causes conservatives to have pre-planned theatrical conniptions.

Ketanji Brown Jackson's face before the confirmation hearings. Her face is now stuck in a permanent eye roll, exonerating parents everywhere for what they've told their kids. // photo by Rose Lincoln, Harvard University (photo has been cropped)

Did Joe Biden just stumble backward into a decent, or at least, not horrible, Supreme Court nominee? Biden had, earlier, mentioned that to replace the retiring Steven Breyer, his primary qualifications to consider would be the shape and color of the justice's genitalia. He did also say "extraordinary qualifications, character, experience, and integrity," but these are all just meaningless fluff terms. The only actual quantifiable qualification he said was "black woman". This is how he got just about the worst person possible to be the vice president. As if to prove how choosing someone based on something completely arbitrary would lead to a scattershot of results, it seems like Ketanji may actually be a decent justice and probably better than the departing Steven Breyer. She comes with the added bonus of having the best first name in the court.

Regardless, Biden's nomination on racial and gender grounds may sound a bit more sincere if he hadn't threatened to filibuster George W. Bush's nominee short-list Janice Rogers Brown, also a black woman, effectively submarining her chances for the nomination.

Ketanji would be the only SCOTUS member that has a background as a public defender, a bizarre state of affairs when considering that defending the public should be far and away the higher function of the Supreme Court compared to prosecution. More interestingly yet, she would be the only SCOTUS member that has never served as a prosecutor, who primarily serves to uphold government power.

While Democrats lead a clown show during confirmation hearings when Republicans hold the White House, the roles are, unsurprisingly, completely reversed when the opposite is true. Asshats Lindsay Graham and Ted Cruz led the Republican arm flailing parade down Grandstand Street, with accusations that Ketanji is soft on pedophiles (she meted out sentences as allowed by law), that she chose to represent people imprisoned at Guantanamo (they are still human beings and should have rights), that she is a proponent of Critical Race Theory (there was no real evidence provided that she is), and was asked to define what a woman is (anyone have flashbacks to Bill Clinton's impeachment hearings?). 

Not that these ridiculous hearings are ever an exhaustive examination of a judge's prior jurisprudence, but if that is all they have, their case is weak, indeed. Graham and Cruz both said what they did to increase their retweets for political cache, while Biden chose Jackson for the same reason: politics.

Her actual prior rulings seem to tend to err on the side of liberty, although several scholars have pointed out that prior rulings may not be a good indicator of future results.

She has done work to commute sentences for nonviolent drug offenders and while a District Court judge, made some good rulings on a civil asset forfeiture case as well as a case on the inhumane treatment of a deaf prisoner. She has also made libertarian statements such as "Presidents are not kings," and "I believe that the Constitution is fixed in its meaning." This does not, of course, mean she is a libertarian. For example, she seems to hold views that favor unions abridging the rights of workers that may not want to join, including public-sector unions. It is also unclear how much of her rhetoric is consistent and will be followed in the Supreme Court.

But she has received praise from various libertarians. Reason Magazine has run several positive articles on her. Justin Amash has tweeted glowing remarks about her. Clark Neily who worked at the Institute for Justice, a libertarian public interest law firm, published an endorsement of Ketanji at the Cato Institute. Ketanji has also been a counsel of record with the Cato Institute on a pro-bono case on the unlawful detention of a person in the United States.

Ketanji Brown Jackson just beautifully expounded on the importance of limited government and divided powers—that the Constitution was written to protect liberty.

— Justin Amash (@justinamash) March 23, 2022

She is not likely to be the next great libertarian justice and surely even less a chance to be a conservative one. She is just about guaranteed to be loved less than Neil Gorsuch on this Supreme Court slate by libertarians. But given her background and her remarks on Constitutional originalism, the Republicans gearing up for a vote need to ask themselves: Will Biden be able to stumble backward into another candidate as good as Ketanji? To me, the answer is a rather obvious not bloody likely.