What We Know About Biden's (Current) Top Pick to Replace Breyer Isn't Just Gleaned From Her History

AP Photo/Andrew Harnik

Before Breyer announced his retirement, his successor already appeared to be chosen. Her name almost seemed to be synonymous with “Breyer retires.”

Judge Ketanji Brown Jackson is currently at the tippy top of Biden’s shortlist for candidates to fill the empty seat. To be sure, the 50-year-old Jackson spent her entire career working her way up to this moment, but despite her history in our nation’s legal system, we don’t know much about her.

Luckily, on Wednesday, Ed Whelan of National Review did some digging and came out with some interesting facts about her. For instance, Jackon’s yet to publish a single opinion, something that Whelan doesn’t necessarily blame her for but does note that it “hasn’t done anything to dispel the serious quality concerns that surround her.” That quality concern seems to put California’s supreme court justice, Leondra Kruger, as the better choice.

But Jackson has some serious bona fides. She sports double degrees from Harvard, spent eight years as a district judge, served on the U.S. Sentencing Commission, and held a clerkship for Justice Stephen Breyer. Yet, Whelan makes it clear that despite all of this, she’s not exactly known for being a great judge, and lists a few instances where higher courts had to overrule rulings from Jackson because she fundamentally seemed to misunderstand the law, or worse, knew it and ruled against it anyway.

One such case occurred in 2018 where Jackson had overstepped her jurisdiction in order to attempt to strike down a Trump executive order:

In 2018, in what the Washington Post hailed as a victory for federal-employee unions, Jackson wrote a 119-page opinion enjoining executive-branch officials from implementing provisions of three of President Trump’s executive orders that (in the Post’s summary) “aimed at making it easier to fire employees and weaken their representation.”

But in a unanimous ruling by an ideologically diverse panel (in American Federation of Government Employees v. Trump), the D.C. Circuit held that the district court lacked jurisdiction to decide the case, as a federal statute vests adjudication of federal labor disputes in the Federal Labor Relations Authority, subject to direct review only in the D.C. Circuit. Judge Thomas Griffith wrote the panel opinion, which was joined most notably by Obama appointee Sri Srinivasan as well as by Bush 41 appointee Raymond Randolph.

Her overstepping her bounds seemed to be a habit of Jackson’s, as the D.C. Circuit reversed a ruling by Jackson in 2019:

In 2019, Jackson issued a 122-page opinion in support of her preliminary injunction (in Make the Road New York v. McAleenan) barring the Department of Homeland Security from enforcing its decision expanding the reach of its expedited-removal process to the statutory limit. Jackson ruled (among other things) that plaintiffs had sufficiently established that her court had jurisdiction over the challenge to the decision; that Congress “did not intend to commit implementation of the expedited removal process it authorized entirely to agency discretion”; that plaintiffs had procedural claims under the Administrative Procedure Act; and that the DHS decision was arbitrary and capricious.

The D.C. Circuit reversed Judge Jackson. All three judges on the panel agreed that she got things very wrong. They differed only on which error required vacating her injunction.

In her majority opinion, Judge Patricia Millett, joined by Judge Harry Edwards—both are liberals appointed by Democratic presidents—held that Congress did indeed commit to DHS’s “sole and unreviewable discretion”—that’s the statutory language—the judgment whether to expand expedited removal to the statutory limit. The DHS decision was therefore not subject to review under the APA, and Jackson’s preliminary injunction was improper.

There are others that Whelan lists but they seem rather light in terms of deciding whether or not she would make a good Supreme Court justice, then again it’s likely that what is considered “good” differs from person to person, or in this case, party to party.

Here’s what we do know. Many Democrats are looking at Jackson, not because of her experience as a judge, but because she’s a black woman. In fact, at Breyer’s retirement announcement, President Joe Biden didn’t mention Jackson by name but simply promised that the next Justice would be a black woman. That more or less makes that the top qualifier for the Democrats.

But let’s toss that shallowness aside and focus on the dangerous part of what Democrats are actually looking for. It seems that, at this moment, they’re looking for someone compliant and willing to toe the party line, wherever that line may move to. This was more or less revealed by Hawaii Sen. Mazie Hirono who stated that the next justice should be less concerned about the law and more concerned about how rulings will affect the people.

(READ: Mazie Hirono Demonstrates, Once Again, Why Democrats Choosing Justices Is a Bad Idea)

In Democrat language, that means she’s concerned about how the next justice’s rulings will conflict or complement the Democrat Party’s agenda.

Combine this with Whelan’s comment about Kruger being a more highly-regarded and possibly far more qualified judge, and it puts Jackson into a bit more focus. It’s entirely possible she’s not being chosen because of her ability, but she’s being chosen because she’s ready and willing to obey orders, and that can be disastrous in itself.

As I’ve previously stated, ruling in the name of a political party is dangerous enough, but ruling on behalf of a party like the one the Democrat Party currently is in will only invite chaos and instability. The Democrat Party is currently in a state of flux with an ongoing war between the radicalized parts of the party and the more moderate part of the party duking it out for control, and it’s clear that the moderates are currently losing that battle…for now.

The thing about the radicals is that their priorities and beliefs shift with the wind. For instance, they invested heavily into the idea that the Hispanic population would be a great asset, but it’s clear that’s not necessarily the case and now you can see the two are becoming more divided. Today’s protected group could be tomorrow’s public enemy number one.

The radical left’s willingness to cancel people or groups can hardly be considered static. They eat their own with reckless abandon and no person or thing stays safe long.

This can invite disaster, but Democrat radicals don’t care. They have no mind for the future, just what they feel in the present, and they want someone who is willing to rule with that same lack of foresight.

This may or may not be Jackson, but there’s definitely a reason they already had her lined up as choice numero uno, and a willingness to comply would be among the top reasons to put someone in power right now.


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