On January 26, 2022, NBC News reported that Justice Breyer planned to retire at the end of the court's current term. In response to request for comment, White House Press SecretaryJen Psaki tweeted, "It has always been the decision of any Supreme Court Justice if and when they decide to retire, and how they want to announce it, and that remains the case today."[12] President Biden cited his experience as chair of the Senate Judiciary Committee from 1987 to 1997 as the driving force in the process of finding a candidate similar to Justice Breyer.[13] His retirement left Samuel Alito as the lone remaining military veteran on the U.S. Supreme Court.[14]
In the wake of the impending Supreme Court vacancy, Democratic groups announced plans for a multi-million dollar campaign to promote Biden's eventual nominee. Demand Justice, a nonprofit led by Democratic strategists, said it would spend whatever it takes in order to get the nomination through the Senate.[15]
Nomination
Jackson in 2022
Potential candidates
On January 27, Biden reiterated his intention to keep his campaign promise to nominate a Black woman.[16] An ABC News/Ipsos poll a few days after found that 76% of Americans believed Biden should consider all possible nominees, while a substantially smaller share of Democrats, at 54%, said the same. Only 23% said he should follow through on his pledge to consider only nominees who are Black women.[17][18] A simultaneous Morning Consult/Politico poll found that 51% of Americans supported Biden's intention to nominate a Black woman, including 82% of Democrats and 47% of independents.[19] A poll in early February by Data for Progress found that 64% of Americans (including 93% of Democrats and 59% of independents) supported Biden's decision to nominate a Black woman.[20]
Some Republicans criticized Biden's pledge to nominate the first Black woman to the court as hypocritical, referencing his 2005 threat to filibuster Janice Rogers Brown,[21] a conservative judge on the D.C. Circuit Court of Appeals, if she was nominated to the Supreme Court.[22]
Jackson delivers remarks on her nomination in the Grand Foyer of the White House, February 25, 2022
On February 25, 2022, it was announced that Biden would nominate Jackson.[1][2][3][4] In his remarks on the announcement, Biden listed "traits of pragmatism, historical perspective, wisdom, [and] character" as criteria for the nomination, characterized Jackson's rulings as "carefully reasoned, tethered to precedent, and [demonstrating respect] for how the law impacts everyday people," and cited her experience as a public defender, trial court judge, and member of the Sentencing Commission.[25][26]
Analysis by FiveThirtyEight reported that Jackson would likely rule in similar ways to other Democratic appointees on the Court, with Judicial Common Space scores placing her as slightly more moderate than these justices and estimates from the Database of Ideology, Money in Politics, and Elections placing her as slightly more liberal than them.[11]
Responses to nomination
Support
Jackson meets with Senate Judiciary Committee Chairman Dick Durbin
House majority whip Jim Clyburn, who had earlier lobbied Biden to nominate U.S. District JudgeJ. Michelle Childs, expressed his support for Jackson and called for "strong bipartisan support" in the confirmation process.[30]
In March, 83 former state attorneys general signed a letter to the Senate Judiciary Committee endorsing Jackson's nomination.[34] Although not a formal endorsement, the American Bar Association's Standing Committee on the Federal Judiciary unanimously rated Jackson "Well Qualified" to serve on the Supreme Court.[35]
Opposition
Some Republican Party leaders and senators voiced early opposition, while many others stated that they would evaluate Jackson's nomination.[27][28][29] Senate Minority Leader Mitch McConnell characterized Jackson as "the favored choice of far-left dark-money groups that have spent years attacking the legitimacy and structure of the court itself".[27] The Republican National Committee called Jackson "a radical, left-wing activist who would rubberstamp Biden's disastrous agenda".[28][36] Republican senator Lindsey Graham, who had previously voted in favor of Jackson's confirmation to the DC Circuit Court of Appeals the previous year, stated that the nomination "means the radical Left has won President Biden over yet again".[36] Former district court judge U. W. Clemon wrote to Biden urging him not to appoint Jackson to the Supreme Court.[37]
Some Republican lawmakers, such as senators Marsha Blackburn, Josh Hawley, and Ted Cruz have criticized Brown's sentencing of child pornography offenders below the sentencing guideline and her support for reducing or removing mandatory minimums for such offenders while on the United States Sentencing Commission. Fact checks from the New York Times and Washington Post said these criticisms were misleading, a distortion of her record, and in part snipped out of context.[38][39]
Polling
A poll of registered voters conducted by Politico and Morning Consult during February 25–27 found that 46% of respondents favored Jackson's confirmation, 17% opposed it, and 36% had no opinion.[40] A Gallup poll conducted during March 1–18 found that 58% of respondents favored Jackson's confirmation, 30% opposed it, and 12% had no opinion.[41]FiveThirtyEight collected a set of 14 polls conducted during February 25 to March 22 by various entities, which found that an average of 47% of Americans supported her confirmation, 23% opposed it, and 30% had no opinion.[42]
On March 2, Senate Democrats announced that they would schedule confirmation hearings for March 21 through March 24, intending to finish the process before the chamber's Easter recess in early April.[43][44]
On March 21, Jackson delivered an opening statement to the committee acknowledging the confirmation process and her past, and thanking her mentors and family members.[45]
Several members of the 22 person committee gave opening statements with Democrats speaking to Jackson's historic nomination, her qualifications and that her experience as a public defender "helps her to understand our justice system uniquely, through the eyes of people who couldn't afford a lawyer." Republicans expressed various concerns they intended to explore, including her sentencing record in child pornography convictions and as to "whether Judge Jackson is committed to the Constitution as originally understood."[46][47][48] A question by Senator Ted Cruz, "Do you agree with this book that is being taught with kids that babies are racist?" prompted Jackson to say she never read the book, as well as disagreeing with making any child feel that they were racist, victims, or oppressors. The exchange also dramatically increased sales of the book Antiracist Baby.[49]
On March 22, Jackson underwent the first round of questions from 20 senators of the Judiciary Committee for 13 hours. Jackson was asked questions related to critical race theory, dark money, abortion, gender identity, judicial activism, possible expansion of the Supreme Court (known as court-packing) and her sentencing record on child pornography cases. Jackson declined to answer when asked to provide the definition of a woman by Marsha Blackburn (R-TN), saying that she could not "in this context." and that "I'm not a biologist." Additionally, Cory Booker (D-NJ) inquired as to how she has been able to manage a work-life balance between motherhood with two daughters and her legal career.[50][51][52][53] Other Republican senators accused her of being soft on crime.[54]
On April 4, 2022, the Senate Judiciary Committee held a vote on whether to advance Jackson's nomination to the full Senate.[63] The party-line vote resulted in a tie, with all 11 Democratic members voting in favor and all 11 Republican members voting against.[64][65]
On the motion to report the nomination with a positive recommendation, the votes were as follows:
On April 4, 2022, the Senate voted to discharge Jackson's nomination from the Judiciary Committee with a vote of 53–47, with three Republicans (Susan Collins, Lisa Murkowski, and Mitt Romney) joining all 50 members of the Democratic caucus to pass the motion.[67] A discharge vote was necessary because of the tied vote in the Judiciary Committee. This was first time that the Senate has discharged the Judiciary Committee from consideration of a Supreme Court nomination since 1853.[68]
Confirmation
On April 7, 2022, the Senate invoked cloture on her nomination by a 53–47 vote with the same senators voting "yea".[69] She was subsequently confirmed by the same margin with once again the same senators voting "yea".[70]
Announcement of the final vote on Jackson's nomination on April 7, 2022Biden and Jackson watch the Senate vote on her confirmation in the Roosevelt Room, April 7, 2022
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