Biden to elevate potential Supreme Court nominee to high-profile appeals court

John Fritze

WASHINGTON – President Joe Biden said Tuesday that he plans to nominate a prominent judge to the federal appellate bench, a promotion that is sure to stir speculation about her potential future nomination to theSupreme Court.

U.S. District Court Judge Ketanji Brown Jackson, appointed to the federal court by President Barack Obama in 2013, will be nominated to serve on the U.S. Court of Appeals for the District of Columbia Circuit. That court, one of the most high-profile in the nation, has long been viewed as a steppingstone for Supreme Court nominees.

Biden has promised to name a Black woman to the Supreme Court for the first time in U.S. history, and Jackson’s name has appeared in the mix of leading candidates. She was on Obama's short list after Associate Justice Antonin Scalia's death in 2016. Biden's first opportunity to follow through on the promise would likely come if Associate Justice Stephen Breyer, 82, retires sometime before the 2022 midterm election. 

At 50, Jackson could serve decades on the court. She won Senate confirmation for the district court in 2013 on a voice vote – signaling bipartisan appeal. 

More:Biden plans to name a Black woman to the Supreme Court

Jackson is likely to receive a more aggressive line of questioning from Senate Republicans for her confirmation this time than she did eight years ago, after she ruled against President Donald Trump in series of scathing and notable opinions.  

She ruled in 2019 that Trump's White House counsel Don McGahn had to testify during what was then a congressional impeachment inquiry into the former president's call with Ukrainian President Volodymyr Zelensky. Trump was impeached over that interaction, in which he pressured Zelensky to investigate Biden, but was acquitted in the Senate.

Trump attorneys argued the president had an “absolute immunity” from congressional subpoenas, allowing him to prevent aides' testimony. Jackson rejected the argument.

"Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings," she wrote. "This means they do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control."

The case is pending at the D.C. Circuit, with arguments set for April.

Judge Ketanji Brown Jackson listens to arguments as local high school students observe a reenactment of a landmark Supreme court case at U.S. Court of Appeals in Washington, DC.

In another 2019 opinion, Jackson dismissed an effort by the Trump administration to speed deportations. That opinion was reversed on appeal and the underlying case was stayed after Biden signed an order to review many of Trump’s immigration policies.

Long considered a conservative appeals court, the D.C. Circuit now has six Democratic-nominated judges and four named by Republicans. Two seats opened up shortly after Biden won the presidency. Merrick Garland, nominated to the court by President Bill Clinton, was confirmed on March 10 as attorney general. Judge David Tatel, also named by Clinton, announced he will take semi-retirement once his replacement is confirmed.

If confirmed by the Senate, Jackson would join the appellate bench at a time when progressive groups have decried a lack of diversity. There are currently four Black women judges out of more than 170 active judges on the federal appeals court.

Other Biden judicial nominees

In Biden's announcement Tuesday, two other Black women were also included among the administration's first slate of judicial nominees. The White House said the president will nominate patent attorney Tiffany Cunningham to be a judge on the U.S. Court of Appeals for the Federal Circuit and attorney Candace Jackson-Akiwumi to the 7th Circuit.

Eight other judicial nominees were announced by the White House that also would increase racial and gender diversity on the federal bench. 

“This trailblazing slate of nominees draws from the very best and brightest minds of the American legal profession," Biden said in a statement. "Each is deeply qualified and prepared to deliver justice faithfully under our Constitution and impartially to the American people – and together they represent the broad diversity of background, experience, and perspective that makes our nation strong.”

Jackson, a Harvard Law graduate who is related by marriage to former House Speaker Paul Ryan, a Republican, also previously served as a federal public defender in Washington, fulfilling a call from some progressive groups who want nominees with diverse legal backgrounds. Some 30 progressive groups sent a letter to Democratic senators recently asking them to support former public interest lawyers for vacancies.

“The overrepresentation of former corporate lawyers and prosecutors on the bench has made a tangible impact on how justice is served in this country,” the letter read.

Jackson-Akiwumi also worked as federal public defender for a decade in Illinois, the White House highlighted in its release Tuesday. 

The more diverse professional backgrounds of Biden's first judicial nominees were lauded by progressives. Jackson and "the other public defenders and civil rights lawyers in this group are exactly the kind of judges we need to rebalance our courts," Brian Fallon, executive director of Demand Justice said, adding that liberals will continue to push their vision of who belongs on the federal bench. 

Sen. Dick Durbin, D-Ill., the chair of the Senate Judiciary Committee, said he looked forward to "processing these nominations expeditiously." The leading Senate Democrat also said he was "particularly heartened" by the nomination of Jackson-Akiwumi to the Chicago-based 7th Circuit. Once she is confirmed, Durbin explained, she "will bring much-needed demographic diversity back to the Seventh Circuit, which currently has no African-American judges."

Sen. Chuck Grassley, R-Iowa, was measured in his response to Biden's list of nominees. Grassley, a former chair of the Senate Judiciary Committee, said the panel must evaluate merits and qualifications of judicial nominees including experience, temperament and "commitment to the Constitution." 

"We should neither be a rubber stamp, nor should we oppose nominees as a matter of course," Grassley said.