Don’t Let Identity Politics Obscure Judge Jackson’s Concerning Record

Judge Ketanji Brown Jackson testifies during a Senate Judiciary Committee’s confirmation hearing on her nomination to the U.S. Supreme Court. Photo: Michael McCoy/Reuters.

We stand on the precipice of a historic moment; Joe Biden has nominated his first potential justice to the Supreme Court, Ketanji Brown Jackson. Jackson has many of the “traditional” prerequisites for the job — an Ivy League education, judicial experience as a district and circuit judge, and further legal expertise garnered as a member of the United States Sentencing Commission and as a public defender. But as President Biden and the Democrats tell you, her selection wasn’t as contingent upon her record as it was on two other factors — that she is black and female (a term Jackson herself has flat-out refused to define). By turning the Jackson nomination into a question of identity, not qualifications, the Democrats and the media are depriving the American people of the measured, fair debate on the nominee’s qualifications and judgment that should be the foundation, not an afterthought, of the judicial confirmation process. 

We’ve seen the results of this kind of appointment process. In 2020, when candidate Biden was tasked with selecting his running mate and, especially given his age, potential replacement as president, he made it clear that whoever he chose would be a “woman of color.” Kamala Harris, part black, part Indian, and entirely female, fit the bill.

On paper she was a reasonable running mate, but Kamala’s credentials were paper thin: it’s not exactly clear what she’s accomplished in decades-long political career. Earning no more than 3% of primary voters’ support, Harris’ voting record to the left of Bernie Sanders left her with little moderate appeal, while her early years prosecuting minor marijuana crimes meant she wasn’t popular with the progressive base either. No one has ever been particularly fond of Harris, likely because she’s a naked political opportunist without a principled bone in her body and with all the charisma of a cackling hyena. But because Harris was chosen for her identity, not her character, any criticism of the most unpopular vice president in U.S. history is written off by the White House as mere “sexism” or “racism.” 

To be clear, Jackson, accomplished in her own right, is not Harris. But that doesn’t mean she isn’t worthy of the critical review of her accomplishments and record that should accompany the nomination of any senior federal official. 

As the assigned federal public defender for four Guantanamo Bay detainees, Jackson worked to defend her clients to the best of her ability, resulting in zero convictions against the four men. While some Republicans have used this to impugn Jackson’s record, one could hardly fault her for doing her job. As a member of the United States Sentencing Commission, Jackson prudently voted to retroactively apply a law eliminating the discrepancies in sentencing between crack and cocaine crimes, a discrepancy with racial origins.  For her senior thesis at Harvard, Jackson correctly argued that prosecutors often use the plea bargain system to browbeat defendants into accepting charges they aren’t guilty of, for fear of a longer prison sentence should they go to trial. 

But while Jackson has come to some valid legal conclusions, her past statements unfortunately suggest that critical race theory — the idea that American institutions are rooted in racist oppression — and not the Constitution, serves as the foundation for her legal outlook. Jackson endorsed the historically farcical 1619 Project, and she grew up reading the “scholarship” of Derrick Bell, known as the “godfather of critical race theory,” claiming to have “drawn heavily” from his and his wife’s “excellent insights.” Not only is this self-professed philosophy divisive, wrong, and terrifying to have on the shoulder of a Supreme Court nominee, it demonstrates Jackson’s opposition to state power was not based on the merit of such a position in and of itself, but only came to be in service of supporting “marginalized” groups. 

This attitude is evident in some of her most controversial decisions. For example, when she, as a member of the United States Sentencing Commission, pushed for more lenient sentencing of child sex offenders, she argued that our current system was motivated by ‘revenge’ and ‘hatred’ and that a public sex offender list created ‘stigma’. As a judge she consistently gave lighter sentences to such criminals, sometimes 80% less than prosecutors recommended. While her efforts to reduce sentencing disparities between similar drugs was laudable, extending that same philosophy to those who have committed some of the vilest and indefensible of human crimes is a sickening perversion of justice. In an era where state sanctioned sexualization of children is becoming normalized and even lionized on the left, Republicans have a moral obligation to remind everyone that an assault on childhood innocence is categorically unacceptable. While this position alone should be reason enough to justify opposition to Jackson, what’s alarming is how she would apply this philosophy to other cases.  

During questioning, Jackson has deflected or ignored questions that would explore how and what kind of decisions Americans can expect Jackson to make. She refused to share even a personal stance on the merits of court packing, a move that would forever delegitimize the court she wishes to serve on. When asked the most fundamental question of all — what her judicial philosophy is — she claimed she didn’t have a philosophy (even though it’s impossible to do the job without one). These ought to be straightforward, obvious questions, and the only reason she evades them is because she thinks most Americans won’t like her answers. 

Because the Democrats and the Biden administration have promoted Jackson through the lens of identity, mainstream media outlets like CNN call serious inquiries and criticism into Jackson as “racist, sexist mudslinging.” These are not trivial issues, and the Senate should take them seriously; while Harris might be replaced in the next two years, a Supreme Court justice serves for life. 

Whether Biden believed Jackson wouldn’t make it through the court on her merits alone or opportunistically chose to deploy identity politics to guarantee her ascension, President Biden should have chosen to promote Jackson on the merits of her judgment and accomplishments — doing any less casts doubt on the integrity of our institutions and our belief in the competence of the individual. America deserves better than that. Jackson deserves better than that. And we cannot and should not allow this to become the norm.

Michael Whittaker is a commentator and analyst for The California Review focused on national and California affairs. Whittaker was previously a contributor at both the Stanford Review and the Stanford Daily.