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Biden picks Ketanji Brown Jackson as Supreme Court nominee

AILSA CHANG, HOST:

It has been exactly two years since President Biden announced at a presidential debate that he would nominate the first Black woman to the Supreme Court.

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PRESIDENT JOE BIDEN: I'm looking forward to making sure there's a Black woman on the Supreme Court to make sure we, in fact, get every representation.

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CHANG: Well, today he made good on that promise.

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BIDEN: For too long, our government, our courts haven't looked like America. And I believe it's time that we have a court that reflects the full talents and greatness of our nation with a nominee of extraordinary qualifications.

CHANG: Biden has chosen Ketanji Brown Jackson to fill the seat that Justice Stephen Breyer will vacate when he retires. She currently sits on the U.S. Court of Appeals for the District of Columbia Circuit. And joining us now to talk about this historic moment is Tomiko Brown-Nagin, a professor at Harvard Law School and dean of Harvard Radcliffe Institute. Welcome back. It's nice to talk to you again.

TOMIKO BROWN-NAGIN: Nice to talk to you, Ailsa.

CHANG: You have just written an excellent biography of the first Black woman ever to serve on the federal bench, Constance Baker Motley, who was appointed a judge for the Southern District of New York back in 1966. And, you know, for a time, her name was tossed around as a possible nominee to the Supreme Court. Why do you think it has taken this long to finally nominate a Black woman to the Supreme Court?

BROWN-NAGIN: Well, this could have happened fairly recently. I do think that these breakthrough appointments require negotiation with a lot of different constituencies. As we saw, there was pressure brought to bear on President Biden over whom to nominate, a lot of back-and-forth. And I think we have ended up in a good place with a nominee who is following in the footsteps of Judge Motley, who did appear in the media reports about Supreme Court shortlists. She ended up having her accomplishments as a civil rights lawyer weaponized against her, with some saying that her experience was too narrow and others saying that she was too liberal. And we are seeing today, Ailsa, that there are those who also are counting Judge Jackson's practice experience as a public defender against her.

CHANG: Well, from the moment that Justice Breyer announced his retirement, President Biden's decision to choose a Black woman for the Supreme Court has been criticized by many conservatives as a decision to value identity over qualifications. And I'm just wondering how that whole conversation has sat with you.

BROWN-NAGIN: Well, I think that is a false binary. One can both recognize the value of the appointment of historically excluded individuals to these positions and also promote excellence. And in Judge Jackson, one certainly has both. There's nothing unusual about presidents leveraging Supreme Court appointments to attract support from interest groups. And I think ultimately many Americans will appreciate her appointment because she is highly qualified, and many people will be happy to see this appointment that affirms workplace equal opportunity.

CHANG: The whole question of identity and how it might shape judicial decision-making, I find, is fascinating. Like, Justice Sotomayor has been very open about how her identity as a Latina absolutely shapes her judicial decision-making. What about Jackson? Does she strike you as a jurist whose identity very much directs or shapes her jurisprudence?

BROWN-NAGIN: No. You know, her background and her identity obviously are important elements of her experience. But the idea that, for African American judges in particular, identity drives outcome is not held up under scrutiny. The primary factor that should drive decisions is precedent.

CHANG: That said, what about Jackson's former experience as a public defender? Do you think that brings something unique to this court, and if so, what?

BROWN-NAGIN: I think that it is important to have that experience as a lawyer who has represented criminal defendants, indigent criminal defendants be represented among the justices for the first time since Thurgood Marshall. Public defenders are integral to our legal system, ensuring due process and the right to counsel. And if we're saying that being a public defender is somehow radical, then what does that mean, exactly, we're saying about our own system?

CHANG: Tomiko Brown-Nagin, author of "Civil Rights Queen: Constance Baker Motley And The Struggle For Equality." Thank you very much for joining us again.

BROWN-NAGIN: You're welcome, Ailsa. Transcript provided by NPR, Copyright NPR.