President Biden’s first Supreme Court nominee could face scrutiny from the Senate for a judicial track record that includes multiple decisions overturned by higher courts.
Biden announced Friday that he is nominating Judge Ketanji Brown Jackson to replace retiring Supreme Court Justice Stephen Breyer.
Jackson’s nomination could carry some judicial baggage, though, as some of her overturned decisions are expected to receive scrutiny during the confirmation process.
Ketanji Brown Jackson is President Biden’s nominee to the Supreme Court. Jackson is pictured here being sworn in to testify before a Senate Judiciary Committee hearing in April 2021.
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The judge’s record was a focal point last year during her confirmation for a seat on the U.S. Circuit Court of Appeals for the District of Columbia, where she now sits. The 51-year-old judge was widely considered the front-runner for the nomination.
‘A single decision’
“She’s only actually published a single decision as an appellate judge, and that came out in the last 24 hours,” George Washington University Law School professor Jonathan Turley said Friday on Fox News, noting it was “a win for unions against a change by federal agencies.”
“She has some opinions as a district court judge,” Turley noted. “They’re quite lengthy opinions. She has been reversed, and the D.C. Circuit [Court of Appeals] reversed her for basically judicial overreach in a couple of cases.”
One 2019 case involved an order that expanded the Department of Homeland Security’s (DHS) definition on which noncitizens could be deported. Another overturned case involved a trio of orders on federal employees’ collective bargaining power.
Jackson’s DHS ruling was overturned in a 2-1 decision by the D.C. Circuit Court, which said reviewing the DHS policy did not fall under the Administrative Procedure Act.
Supreme Court Justice Stephen Breyer during an interview in his office in Washington in August 2021.
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The judge’s ruling on the three collective bargaining orders was overturned unanimously by the D.C. Circuit Court, which ruled that Jackson did not have jurisdiction to adjudicate the case.
‘No legal basis’
“Judge Jackson’s record of reversals by the left-leaning D.C. Circuit is troubling for anyone concerned about the rule of law,” Judicial Crisis Network president Carrie Severino previously told Fox News Digital. “For example, in Make the Road New York v. Wolf, a D.C. Circuit panel composed of a majority of Democratic nominees concluded that Jackson had set aside a Trump administration rule where there was no legal basis to do so.
“Cases like these suggest that Jackson might be willing in politically charged cases to ignore the law to deliver a particular policy outcome, and that’s not what we want to see from a Supreme Court justice.”
Senate Republicans are likely to point to Jackson’s overturned cases in their arguments against her being confirmed to replace Breyer.
Although Jackson received some Republican support in the Senate for her nomination to the D.C. appeals court, the potential lifetime appointment to the Supreme Court means she will likely face more intense scrutiny from Republicans in a split chamber.
“Expect to hear from Biden and his supporters that Judge Jackson is ‘in the mainstream,'” Severino tweeted after Biden announced Jackson’s nomination. “That’s liberal speak for a judge who will deviate from the text of the constitution and statutes without hesitation to ensure the Left’s preferred policy outcomes.”
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