The confirmation of Judge Ketanji Brown Jackson to the Supreme Court of the United States is being loudly proclaimed by the Biden administration as a triumph for diversity, equality, African-American rights, women’s rights, and of an interpretation of the Constitution that’s so flexible, it’s reduced to a platitude enjoining jurists to interpret the Constitution in the way most amenable to that person’s individual social and political preferences.
To borrow from the vocabulary of judges, that representation of Justice Jackson is correct in part and mistaken in part. As many have pointed out, it’s distasteful for the president to have stated the need for a female African-American Supreme Court justice, as it absolutely isn’t a post connected to any subcategory of the population. The criterion for such a nomination is the most capable and well-qualified person available, and as it would be impossible to identify any particular victorious candidate by that criterion, there would be room to find a suitable justice from both sexes, almost all ethnicities, all general pigmentation groups, a full range of sexual orientations, and a wide range of ages and from all parts of the country.
African-Americans now hold two of the nine seats in the Supreme Court, which is almost double their percentage of the population of the United States. Women hold four of the Supreme Court seats, which is slightly below their percentage of the population but somewhat above their percentage of legally professionally qualified citizens.
I remember when President Dwight Eisenhower let it be known that the nomination of Justice William Brennan was a recognition of the 25 percent of Americans who were Roman Catholics. (Roger B. Taney was the Roman Catholic Chief Justice of the United States from 1836 to 1864, so it was not such a novelty.) Now there are six Roman Catholics on the bench of whom five appear to be regular practitioners of their faith. It was 25 years later that President Ronald Reagan rightly said it was time to have a female Supreme Court Justice and named Sandra Day O'Connor.
There’s no indication that these changes in composition of the court have changed its outlook appreciably. All of these justices are competent, and I don’t doubt that Justice Jackson will prove to be so also, and there’s something to be said for having large demographic groups including Roman Catholics and African-Americans (both together in the case of Justice Clarence Thomas) represented on the highest court, but any tendency to appoint Supreme Court justices to represent a distinct demographic group of Americans, rather than to interpret the Constitution of the United States conscientiously and without regard to individual interests and only for the benefit of the whole country as well as it can be determined, is retrograde. To that extent, the nomination of Justice Jackson was politically motivated and compromised her candidacy in advance.
With that said, the legitimate arguments against her confirmation were that in testimony under oath she declined to attempt to define a woman, and she also declined to express opposition to any measure to expand the court for evidently political purpose.
On the other hand, there are powerful arguments for why Justice Jackson may be a great asset to the bench and one whose elevation will be a matter of gratitude to millions of Americans: She is the only member of that bench who has a solid background as a criminal defense counsel.
She alone of the nine justices has had to face the overwhelming steamroller of the American prosecutory system that gives federal prosecutors convictions in slightly over 98 percent of federal criminal prosecutions, and of those, 95 percent without a trial. This is a mockery of justice, and it’s an acute embarrassment to the country, which has been commented on by successive chief justices of the United States and by many distinguished jurists and counsel and legal academics.
All of these characteristics of the system are unjust, unlike anything in any other advanced national criminal legal system, and they are facts with which Justice Jackson, unlike her colleagues on the high court, is intimately familiar. I have generally admired the judgments of Justice Samuel Alito, a former prosecutor, but Justice Jackson would know, and Justice Alito would not, the bitterness of having an innocent client convicted and severely sentenced. In bringing that experience and that perspective to the Supreme Court of the United States, Justice Jackson will on that count alone be a great asset.
She knows why the United States has 5 percent of the world’s population and 25 percent of its incarcerated people, and six to 12 times as many incarcerated people per capita as the most comparable other prosperous flourishing democracies: Australia, Canada, France, Germany, Japan, and the United Kingdom.
A particular bugbear to Republican senators in the recent confirmation process of Justice Jackson was her tendency to go below the guidelines in sentencing, particularly for possession of child pornography. Someone who sits in the relative privacy of his home and draws a representation of child pornography, shows it to no one, but contemplates it lengthily and is stimulated by it, but not with consequences to others, is seriously maladjusted even by our latitudinarian current tolerance of a variety of sexual orientations. But he should not be deemed to be committing a crime. Justice Jackson recognizes the difference between psychotic menaces to the undisturbed sexual lives of others, especially minors, and disturbed people who confine their lurid and disgusting sexual fantasies to themselves. The frenzied refusal of Republican senators to contemplate the limits to invasion of privacy and of liberty of thought, however offensive, could lead to dangerous conclusions. People must not be persecuted for their private thoughts.
The publication and distribution of child pornography is another and completely unacceptable matter, and legislators should not lose sight of this distinction.
The Supreme Court desperately needs someone who knows what a cesspool of injustice American criminal law is, and if Justice Jackson brings that sensibility to the high court, the baggage she is bringing in other areas will be affordable. The Republicans should be wary of an unlimited wish to convict and imprison.
