The Best Possible Nominee
Tomorrow, the Senate Judiciary Committee begins confirmation hearings on the nomination of Judge Ketanji Brown Jackson to the Supreme Court. Every objective measure demonstrates that Judge Jackson is exceptionally well-qualified to take a seat on that Court. One argument that her opposition has latched onto asserts that her nomination reflects identity politics, rather than a search for some hypothetically best-qualified person. The idea that a best-qualified person exists wrongly presupposes that metrics exist that can rank otherwise qualified persons. It also disregards the lessons of history.
John Marshall earned the sobriquet, the “Great Chief Justice,” for establishing the judiciary as a true co-equal branch of government. When John Jay turned down reappointment to his old post, lame-duck John Adams nominated Marshall, his secretary of state, as a loyal Federalist who would fight the policies of the incoming Jefferson administration. There was little reason to think Marshall would become the essential judicial figure that he did. Senator Jonathan Dayton voted to confirm Marshall only because rejection would result in the likely nomination of “some other character more improper, and more disgusting.”
Other justices achieved hall-of-fame status despite controversy or obscurity when named. The nomination of Louis D. Brandeis was as controversial as any nomination. One observer said it was as much a call to arms as the resolution that declared the Spanish-American War. Brandeis faced opposition from seven former presidents of the American Bar Association, as well as the president of his alma mater, Harvard University. Yet, his place in the pantheon of great Supreme Court justices is unquestioned today.
Dwight Eisenhower wanted to nominate a youthful Catholic Democrat to shore up a needed constituency for his upcoming reelection campaign. Few experienced judges fit that bill. Just months before the vacancy occurred, William Brennan, then sitting on the New Jersey Supreme Court, spoke at a Justice Department conference about his state’s judicial reforms, but only as a last-minute substitute for an ill New Jersey Chief Justice Arthur Vanderbilt. Despite the dry subject, Brennan so impressed officials that his name catapulted to the top of the list when a seat opened.
When Brennan was nominated, three members of the Supreme Court told the Washington Star that they had never heard of him. After his confirmation, he admitted, “I’m the mule that was entered in the Kentucky Derby. I don’t expect to distinguish myself but I do expect to benefit from the association.” Justice Felix Frankfurter, who had been Brennan’s professor, could not find anyone, himself included, who remembered Brennan as a student. Today, scholars consider Brennan the most influential justice of the 20th century.
In contrast, Frankfurter arrived at the Supreme Court as a much-celebrated lawyer and scholar – criteria that might qualify him as the best candidate of his time. Frankfurter’s judicial tenure did not match expectations. His insistent didacticism rubbed his fellow justices the wrong way. As a member of the Court, the one-time activist lawyer became an outsized advocate of judicial restraint, which further limited his long-term impact. He authored few landmark decisions.
Many other examples exist and demonstrate that there is no single set of criteria to predict success. The idea that there is a single best candidate for nomination also ignores a critical confounding factor: real-world experience informs any conception of the idealized reasonable person that the law uses as a standard for measuring how law sensibly applies to a particular set of facts. Even in constitutional law, rationality plays an outsized role. Justice Antonin Scalia, for example, championed originalism as a school of constitutional interpretation, yet described himself as a “faint-hearted originalist” because he understood that too rigid an approach to construing the Constitution would produce absurd and indefensible results. What is reasonable can also differ based on experiences by race, religion, gender, national origin, or sexual orientation – as well as for a rural resident and for a city-dweller. For that reason, a diversity of experience assures that the Court does not operate in a bubble constricted by understandings constrained by experiential myopia.
Beyond her sterling credentials that match or exceed the current justices’ academic qualifications and legal experiences, Judge Jackson also brings a host of experiences that diverge from the current membership. She speaks the language of law that the justices speak, but she will also bring to the justices’ conference new perspectives that will enrich the discussion and enhance their collective decision-making. When critics question whether she is the best possible nominee, they seek to employ non-existent criteria that miss the mark and hide their biases. The Senate should confirm Judge Jackson.