What Kind of Justice Will We Get With Ketanji Brown Jackson? She should be asked at her Supreme Court confirmation hearings about her views on crime and if Democratic efforts have harmed public safety.Jason Riley
Joe Biden was chairman of the Senate Judiciary Committee in 1991 when President George H.W. Bush nominated Clarence Thomas to the Supreme Court. Mr. Biden accused Bush of putting racial identity ahead of qualifications: “Had Thomas been white, he never would have been nominated. The only reason he’s on the court is because he’s black.” Now the shoe is on the other foot.
If Sen. Biden could only speculate about the Thomas nomination, no such speculation is needed concerning President Biden’s choice of Judge Ketanji Brown Jackson to fill the seat being vacated by Justice Stephen Breyer. Two years ago, while running for president, Mr. Biden announced that his first nominee to the court would be a black woman. No whites (or men) need apply.
Later this year, the Supreme Court will consider a case involving the use of race in college admissions. The focus will be on whether these policies are compatible with the Constitution’s Equal Protection Clause and with federal statutes that explicitly ban racial discrimination. Still, the dubious legality of racial double standards—clear to anyone who believes that words mean what they say—is only one of the problems with affirmative action. Racial preferences also serve to diminish black achievement. They allow others to take credit for black accomplishments, and they imply that black upward mobility can’t or won’t occur without officially sanctioned favoritism.
When Elizabeth Warren ran for the U.S. Senate in 2012 and was accused of identifying as Native American to bolster her academic career, she became indignant. “I got what I got because of the work I’ve done,” she told the Boston Globe. In other words, she responded the way any self-respecting woman would respond to accusations that she was less qualified but hired anyway for diversity reasons. Liberal proponents of affirmative action tell blacks that there is no shame in being hired based on their skin color, but why are black overachievers like Justice Thomas or Judge Jackson expected to be any less self-respecting than Sen. Warren?
The reality is that blacks were advancing at a faster clip, both educationally and economically, before the implementation of affirmative action policies in the 1970s. At best, racial preferences continued a pre-existing trend. In the 1940s and ’50s, the poverty rate fell further for blacks than for whites. In the 1960s, black household income doubled. The postwar economic boom lifted all groups, but blacks especially. A similar phenomenon occurred to a lesser extent in the pre-pandemic economy under Donald Trump, when black wages rose faster than white wages, and black unemployment and poverty reached record lows. Apparently, blacks need tight labor markets more than they need a woke president.
Judge Jackson’s résumé is impressive by any objective standard. She attended top-ranked schools, where she excelled in her studies, and later clerked for the justice she has been nominated to succeed. Her professional career would probably be even more impressive if she hadn’t taken less-demanding jobs while raising young children, which is something that shouldn’t be held against any working parent.
Nevertheless, some Republicans are in payback mode. They remember the spectacle that Democrats made of the Brett Kavanaugh hearings. They recall Mr. Biden’s prominent role in blocking the appellate court nominations of Janice Rogers Brown (a black judge) and Miguel Estrada (a Hispanic lawyer), both of whom were on President George W. Bush’s Supreme Court short list. And Republicans certainly haven’t forgotten what Mr. Biden put Justice Thomas through three decades ago. Nor should they.
That history notwithstanding, questioning Judge Jackson’s judicial philosophy would be far more constructive than questioning her qualifications. It’s also a more principled reason to oppose her nomination. Judge Jackson is the preferred choice of progressives primarily because she served as vice chairman of the U.S. Sentencing Commission and has advocated for more-lenient punishment of convicted criminals. Like many on the social-justice left, she seems to have more sympathy for criminals than for their victims, even though low-income blacks and Hispanics are more likely than other groups to be targets of violent crime.
Republicans can’t block Judge Jackson’s appointment, because Democrats control the Senate, but that doesn’t mean they can’t use her confirmation hearings to educate the public about what type of justice we’re getting. Polling shows that crime is now a top concern of voters. The homicide tally in some major cities has approached levels last seen in the record-breaking early 1990s.
Meanwhile, liberals want to reduce law-enforcement resources, and so-called bail reform has impeded the ability of judges to keep repeat offenders off the streets. Judge Jackson should be asked, pointedly, whether such efforts have worked to the detriment of public safety. The public deserves to know if district attorneys who think that policing is a bigger problem than crime, and who boast about how few suspects they prosecute, will have a new ally on the Supreme Court.
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