Judge Ketanji Brown Jackson – Nominee to the U.S. Court of Appeals for the D.C. Circuit

For the last eight years, Judge Ketanji Brown Jackson has served on the U.S. District Court in Washington D.C., making her mark in a number of prominent cases, and making a presidential shortlist for the Supreme Court twice.  As she is now nominated to the prestigious D.C. Circuit, a potential Supreme Court nomination becomes even more likely.

Background

A D.C. native, Jackson was born Ketanji Onyika Brown on September 14, 1970, the daughter of an attorney and a school principal.  Jackson graduated magna cum laude from Harvard University in 1992 and from Harvard Law School in 1996.[1]  After graduating, Jackson clerked for Judge Patti Saris on the U.S. District Court for the District of Massachusetts and for Judge Bruce Selya on the U.S. Court of Appeals for the First Circuit before clerking for Justice Stephen Breyer on the U.S. Supreme Court.[2] 

After her clerkships, Jackson joined the Boston office of Goodwin Proctor as an Associate.[3]  In 2002, Jackson moved back to D.C. to work for The Feinberg Group, LLP as an Associate, but moved just an year later to the U.S. Sentencing Commission to be Assistant Special Counsel.[4] 

In 2005, Jackson joined the Federal Public Defender’s Office in Washington D.C.[5]  Two years later, Jackson moved to the D.C. Office of Morrison & Foerster as Of Counsel.

In 2010, Jackson was nominated by President Obama and confirmed by the U.S. Senate to the U.S. Sentencing Commission.  She served there until her 2013 confirmation to the U.S. District Court for the District of Columbia, where she currently serves.

History of the Seat

Jackson has been nominated for a seat on the U.S. Court of Appeals for the D.C. Circuit.  She will either fill the seat opened by the confirmation of Judge Merrick Garland to be U.S. Attorney General on March 10, 2021, or the vacancy opened by Judge David Tatel’s move to senior status upon the confirmation of his successor.

Political Activity

In 2008, Jackson gave $400 to President Obama’s campaign.[6]  Additionally, Jackson volunteered as an election poll monitor for the Obama campaign in the primaries and the general election.[7] 

Legal Career

Setting aside her clerkships, Jackson’s pre-bench career can largely be divided into three categories: working on sentencing with the U.S. Sentencing Commission; working as a federal public defender; and working in private practice.  

U.S. Sentencing Commission

From 2010 to 2013, Jackson served as a Commissioner on the U.S. Sentencing Commission, an independent agency that creates the guidelines used by federal judges in sentencing after conviction.  Jackson had previously served as a staffer with the Commission from 2003 to 2005.  As a Commissioner, Jackson worked on criminal sentencing policy, including working with the federal judiciary on changes to the guidelines.  

Federal Public Defender

Between 2005 and 2007, Jackson worked as a Federal Public Defender in the District of Columbia.[8]  During this time, Jackson had around ten appearances in federal court, including arguments before the D.C. Circuit.[9]  Among her more significant cases, Jackson was able to get the D.C. Circuit to overturn a conviction for felon in possession of a firearm based on improper voir dire by the district judge.[10] 

Private Practice

Jackson has had a number of stints in private practice, including from 1998 to 1999, 2000 to 2003, and 2003 to 2007.[11]  In these roles, Jackson worked on civil litigation at both the trial and appellate levels.  For example, Jackson successfully convinced the D.C. Court of Appeals to reverse a $350,000 civil forfeiture award against the Washington Light Gas Company.[12]  Jackson also represented the non-profit Rails-to-Trails Conservancy in litigation regarding government use of abandoned railroad corridors and conversion to public spaces.[13] 

Jurisprudence

Since her unanimous confirmation in 2013, Jackson has served as a federal district judge on the U.S. District Court for the District of Columbia.  In this capacity, Jackson has presided over a number of newsworthy cases.  Some of the key ones are summarized below.

U.S.D.A. Country of Origin Labels

Early in her tenure on the bench, Jackson presided over a challenge of the U.S. Department of Agriculture’s rule requiring meat to be labeled with country of origin.[14]  Jackson denied a preliminary injunction against the rule, finding that the rule could not cause irreparable damage to the plaintiff meatpackers.[15] 

H.H.S. Teen Pregnancy Prevention Program

In 2018, Jackson reviewed a suit brought by Texas nonprofit Healthy Futures of Texas after five-year-grants for anti-teen pregnancy programs offered by the U.S. Department of Health and Human Services were terminated two years early.[16]  Jackson ruled that the early termination was “arbitrary and capricious” joining four other district court judges in so ruling.[17] 

Border Wall Waiver

In 2019, Jackson dismissed a lawsuit brought against the Trump Administration’s decision to waive environmental laws in building its border wall.[18]  Jackson ruled that she lacked jurisdiction over the claims under the Illegal Immigration Reform and Immigrant Responsibility Act.[19] 

Expansion of “Fast Track” Deportations

In 2019, Jackson enjoined a U.S. Department of Homeland Security rule that expanded the use of “fast track” deportation procedures, allowing immigrants to be deported with more limited procedural protections.[20] Jackson ruled that the agency rule was “arbitrary and capricious” and that the agency violated the Administrative Procedure Act by not seeking public comment before issuing the rule.[21] 

House Judiciary Subpoenas Against Don McGahn

In 2019, Jackson reviewed a lawsuit filed by the House Judiciary Committee seeking to compel the testimony of former White House Counsel Don McGahn.[22]  Jackson rejected the Administration’s claims of absolute privilege, ruling that McGahn could be compelled to testify.[23]  In February 2020, a 2-1 panel of the D.C. Circuit overturned Jackson’s ruling, finding that the Separation of Powers prevented the House from compelling testimony from the Executive Branch.  However, the full D.C. Circuit vacated the panel decision and affirmed Jackson’s original decision on a 7-2 vote.[24] 

Overall Assessment

Given her stellar academic credentials (including a prestigious Supreme Court clerkship) and her tenure on the district court, Ketanji Jackson has a distinguished record for the appellate bench.  Furthermore, if confirmed, Jackson would be primed for a history-making nomination to the Supreme Court.

However, it is that trajectory to the high court that is likely to make Jackson controversial.  Critics may point to Jackson’s rulings against the Trump Administration and in favor of endorsing the McGahn subpoena to argue that she is too liberal to sit on the D.C. Circuit. In contrast, her supporters will likely note that Jackson has sided with the Trump Administration in a number of suits as well, including the suit over the Board Wall, and that her overall record is respected in the legal community.

In the end, Jackson has the advantage of a narrow Democratic majority in the U.S. Senate.  Assuming the caucus holds together, she will likely be confirmed in due course.


[1]See Sen. Comm. on the Judiciary, 113rd Cong., Ketanji Brown Jackson: Questionnaire for Judicial Nominees 1.

[2]Jackson’s clerk class included 7th Circuit Judge Michael Scudder, Texas Supreme Court Justice Brett Busby, and appellate superstar Kannon Shanmugam. 

[3] See Jackson, supra n. 1 at 2.

[4] Id.

[5]See Sen. Comm. on the Judiciary, 113rd Cong., Ketanji Brown Jackson: Questionnaire for Judicial Nominees 1.

[7] See Jackson, supra n. 1 at 20.

[8] Id. at 23.

[9]See id. at 24.

[10] United States v. Littejohn, 489 F.3d 1335 (D.C. Cir. 2007). 

[11] See Jackson, supra n. 1 at 22-23.

[12] See Washington Gas Light Co. v. Pub. Service Comm’n of D.C., 982 A.2d 691 (D.C. 2009).

[13]See Ladd v. United States, No. 1:07-cv-271 (Fed. Cl., Oct. 14, 2009).

[14] Charles Abbott, New U.S. Meat Rule Survives Challenge by Meat Packers, Reuters, Sept. 11, 2013, https://www.reuters.com/article/us-usa-meat-labeling-idUSBRE98A14U20130911.

[15] See id.

[16] Jennifer Hansler, HHS Loses Another Court Battle Over Teen Pregnancy Prevention Grant Funding, CNN, June 4, 2018, https://www.cnn.com/2018/06/02/politics/hhs-teen-pregnancy-program-dc-district-court/index.html.

[17]See id.

[18] Barbara Grzincic, Trump Administration Can Waive Enviro Laws for Border Wall – Judge, Reuters, Sept. 5, 2019, https://www.reuters.com/article/border-wall-waiver-lawsuit-idUSL2N25X00X.

[19] See id.

[20] Spencer Hsu, Judge Bars Trump Fast-Track Deportation Policy, Saying Threat to Legal Migrants Was Not Assessed, Wash. Post, Sept. 28, 2019, https://www.washingtonpost.com/local/legal-issues/judge-bars-trump-fast-track-deportation-policy-saying-threat-to-legal-migrants-was-not-assessed/2019/09/28/cf3d237e-e1ed-11e9-b199-f638bf2c340f_story.html.

[21]See Josh Gerstein, Judge Blocks Trump Plan to Expand Fast-Track Deportations, Politico, Sept. 28, 2019, https://www.politico.com/news/2019/09/28/judge-blocks-trump-fast-track-deportations-007717.

[22] In re Don McGahn, 1:19-cv-02379, D.D.C. 2019.

[23] Bobby Allyn, In Blow to White House, Federal Judge Rules That Don McGahn Must Testify, Nat’l Pub. Radio, Nov. 25, 2019, https://www.npr.org/2019/11/25/782705643/federal-judge-rules-that-mcgahn-must-testify-delivering-blow-to-white-house.

[24] Josh Gerstein and Kyle Cheney, Appeals Court Rejects Key Argument Against McGahn Subpoena, Politico, Aug. 7, 2020, https://www.politico.com/news/2020/08/07/appeals-court-rules-mcgahn-must-testify-392562.

5 Comments

  1. Pingback: Pennsylvania Member of Congress Tracking Report - 06.20.21

  2. Look for her, California supreme court justice Leondra Kruger or 7th circuit court judge Candace Jackson-Akiwumi to be President Biden’s first appointment to the supreme court once a vacancy arises. I would say once confirmed, 2nd circuit court nominee Eunice C. Lee may have an outside chance. If there is a South Carolina vacancy on the 4th circuit & district court judge Julianna Michelle Childs is appointed, I would add her on to the list depending on the timing.

    Like

  3. Pingback: Where We Stand: Assessing Vacancies and Nominations in the Federal Judiciary – The Atlantic Coast | The Vetting Room

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