How to Judge Ketanji Brown Jackson

“I don’t understand you,” thought a young Ketanji Brown, as she lunched with Justice Clarence Thomas some 20 years ago. “You sound like my parents. You sound like the people I grew up with.” “But,” Brown noted, “the lessons he tended to draw from the experiences of the segregated South seemed to be different than those of everybody I know.” 

Some pundits made this insight the basis of their hope that a Justice Ketanji Brown Jackson might change Clarence Thomas’ judicial reasoning. Since the nation’s corporate media elite regard Thomas’ views as a product of his colleague the late Antonin Scalia or his conservative activist wife, why shouldn’t a junior colleague reprogram him?

But the nominee for the Supreme Court seat to be vacated by Stephen Breyer, the justice she was clerking for at the time of that luncheon, never actually spoke these words. They are an invention of Kevin Merida and Michael Fletcher’s 2007 biography of Thomas, Supreme Discomfort: The Divided Soul of Clarence Thomas. For all I know, it’s possible that Jackson’s account was distorted, abridged, or completely fabricated. I base this conclusion on my own experience with Merida, who began an interview with me for that book. When I saw the direction he was taking, I ceased speaking with him. He seemed set upon proving his preconceived, dubious thesis about Thomas. 

So it’s possible that young Ketanji Brown was used in a preposterous polemic. But if it’s true she thought Justice Thomas’ experience in Pin Point, Georgia, compared with that of her parents, I question what she knows about life in the racially segregated South. Can she be really that stupid or sheltered? A profile of her remarkable Miami public high school reveals alumni such as Jeff Bezos and numerous attorneys, and five classmates who attended Harvard. Did she go on to ask Justice Thomas why his conclusions differed so much from those of her family and acquaintances? At any rate, a clerk should not relate stories about any of the justices. That much she should have known.

What the episode calls into question is Joe Biden’s insistence that his first Supreme Court nominee should be a black woman, as that would make an institution that “looks more like America.” (Wouldn’t a court that thinks more like America be more to the point? Why not say that instead? Thinks like America, not like the rarified legal theorists who roost in its law schools.) 

Would the justice she would replace have accepted a race-based criterion for his replacement? After all, Justice Breyer joined the judgment of the court majority and voted against racial quotas at the University of Michigan in the Gratz v. Bollinger (2003) case. Would she have joined the dissent instead of concurring in the judgment?

The question remains, why would Judge Jackson add anything substantive to the court based on her mere appearance? Because she has experienced racial discrimination? Why not overweight or remarkably tall or short justices, or, to introduce character, shy or garrulous ones? This emphasis on appearance overlooks what is at the core of the black experience in America. 

Biden’s shameless (and stupid) appeal to race recalls the ridicule that greeted President George H. W. Bush when he described Clarence Thomas the “best-qualified” person to fill Thurgood Marshall’s seat. Of course those of us who had worked for then-Chairman Thomas at the Equal Employment Opportunity Commission knew he was the best-qualified. We saw how dangerous he would be to the growing administrative state and the increasingly irresponsible Congress. His contempt for mandated racial preferences and his love of individual liberty were clear principles in his mind. His love of the great statesmen such as Lincoln and Churchill was not affectation. He grew up with natural law principles in his consciousness. His intellectual curiosity in grappling with major issues of political philosophy made him a rare Washington, D.C. denizen.

The elder Bush said Thomas’ selection was not a matter of being “black and a minority.” But Thomas did retain something important from his heritage and upbringing—he had a closeness to slavery as a part of the life of this nation. Brutality and second-class (and worse) status were not distant. In other words, he took—and takes—the possibility of tyranny seriously

Those who knew Thomas well could never make this argument in public, for the prejudices among both his allies and enemies could not tolerate an intelligent black man with such powerful, unconventional opinions. So, paradoxically, the diversity argument used for Jackson and denied by President Bush actually applied to Thomas. Just imagine, a Supreme Court justice inquisitive about America’s principles, past and present, who could detect tyranny, both incipient and full-blown.

Jackson, as well as the other jurists the media have focused on, have a distance from the evil of slavery through the enormous changes in political life, moral consciousness, and their place in the American legal elite. (Some have noted the element of Caribbean heritage in other black judges.) Being black in itself brings nothing extraordinary into professional qualifications.

Thus, Biden’s aesthetic (and clearly partisan) purpose insults Jackson’s remarkable academic record. From her school days she took full advantage of the opportunities available to gifted students—for example, being flown across the country to debate tournaments and oratory contests. That high school experience replicated itself at Harvard and throughout her professional career. 

How a Justice Jackson would reflect black America better than Clarence Thomas is dubious. What she clearly reflects is black Americans’ entry into the elite professional class of the administrative state. But will she make a good justice? She has yet issued only two opinions in her new position on the important D.C. Circuit Court of Appeals. This deficiency by itself urges a delayed confirmation hearing.

One substantive issue concerns the quality of her federal district court decisions, some of which have been overturned by the liberal-dominated court. This includes her first one, which would have fortified the administrative state. Her life and professional experience all reflect this comfort with elite status and opinion. Her white husband is even related to the legendary nihilist Justice Oliver Wendell Holmes. 

The best way for senators to oppose her is to make her strength—her success in mastering the heights of conventional legal success—her weakness. She comes from the same progressive elite that has ruined this country from 1900 on, and she should be made to defend this anti-democratic cabal. Her race is irrelevant; her membership in the administrative state elite is all-important. 

Moreover, while Jackson lacks appellate court experience, she has been a political activist on the U.S. Sentencing Commission, a congressionally created body that may violate separation of powers principles. The Senate Judiciary Committee should certainly raise questions both about her work for the commission and other related issues, such as the successful movements to decriminalize drugs (racist), abolish cash bail (again, racist), to not arrest shoplifters (blatantly racist), and to denounce “broken windows” theory (unpunished petty violations of law encourage more serious lawless behavior, really, really KKK racist). 

Given the increasing crime rate, the public should be more than curious about the nominee’s views of these and other issues. I am confident that the Biden White House vetted her on these issues, but it won’t hurt to check.

Another one: Since Judge Jackson serves on the Harvard Board of Overseers, clearly she should recuse herself from the upcoming case involving discrimination against Asian-Americans at Harvard. Having been promised that recusal, the Judiciary Committee should ask Judge Jackson about anti-Asian attitudes at elite universities.

Jackson’s elite status, her involvement in criminal justice reform, her lack of appellate court experience (and, apparently, on religion and other freedoms cases), and the questionable quality of her federal district court decisions all give fair-minded opponents plenty to talk about, provided there are senators who recognize and know how to raise these key questions. 

About Ken Masugi

Ken Masugi, Ph.D., is a distinguished fellow of the Center for American Greatness and a senior fellow of the Claremont Institute. He has been a speechwriter for two cabinet members, and a special assistant for Clarence Thomas when he was chairman of the Equal Employment Opportunity Commission. Masugi is co-author, editor, or co-editor of 10 books on American politics. He has taught at the U.S. Air Force Academy, where he was Olin Distinguished Visiting Professor; James Madison College of Michigan State University; the Ashbrook Center of Ashland University; and Princeton University.

Photo: Drew Angerer/Getty Images

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