Republicans will face a dilemma this week when the Senate Judiciary Committee considers two of President Biden’s priority picks for the federal court, both Black women with impeccable credentials. Judge Ketanji Brown Jackson is slated to fill Merrick Garland’s former seat on the U.S. District Court of Appeals, often a stepping stone to the Supreme Court. And Candace Jackson-Akiwumi, nominated for the Seventh Circuit, would be only the third federal appellate court judge in history to have spent a majority of their career as a public defender.
Both women fit the model of new judges Biden has talked about to bring more diversity in terms of both race and professional backgrounds to a federal bench grown top-heavy with prosecutors trained in punitive justice and partners from big law firms whose world view doesn’t see past corporate America. And their qualifications cannot be assailed—at least not fairly. Republicans have already twice voted to confirm Judge Jackson, 50, a Harvard Law grad: as vice-chair of the U.S. Sentencing Commission in 2010, where she oversaw the reduction of sentences for crack cocaine and other drug-related offenses, and then to the U.S. District Court in 2013.
Jackson-Akiwumi, 41, is currently with a major law firm where she focuses on white collar criminal defense, but before that, from 2010 to 2020, she was a public defender in Chicago, a job she described on the website of Yale Law School, her alma mater, as having “meaning to me. I provide quality representation to people who would not be able to afford it, and I am there for clients at a most dreary and frightening juncture: when they are being judged for the worst day or days in their life.”
All of that may not be enough to protect these women about to receive lifetime appointments to positions of great power from Republicans who notably saved their most pointed attacks on Biden’s executive branch nominees for women and persons of color.
Filling out the slate of five nominees set to testify Wednesday before the Judiciary committee are two for the District Court in New Jersey, including a magistrate judge and former federal prosecutor, Zahid N. Quraishi, a Muslim American of Pakistani descent, and Regina Rodriguez for the District Court in Colorado, whose nomination drew early fire from progressives.
Perhaps because Republicans can’t honestly make the case that Democratic nominees are wildly outside the mainstream, the way many of Donald Trump’s nominees who Mitch McConnell pushed through were, conservative advocacy groups have already mounted an ad campaign against Democrats taking “dark money” and rewarding “secret donors” to advance judges from the “radical left” who will supposedly rubberstamp Biden’s agenda. But the ads are so generic the scripts could have been written by Democrats complaining about GOP judges.
Democrats point to Republican Senator John Cornyn’s recent grilling of Kristen Clarke, nominee for assistant attorney general, on a letter she wrote as a 19-year-old undergrad at Harvard about the superiority of the Black race, which was intended to spoof The Bell Curve, a hugely controversial book that tried to link race with intelligence and that was co-authored by a Harvard professor. Cornyn seemed to have thought he’d uncovered Clarke’s Black supremacist past 25 years later, only to drop the line of questioning after Clarke explained that it was, in fact, a parody and that it had been reported on at the time as one.
“These nominees come before the committee with sterling reputations and unquestionable credentials in the law,” Democrat Sheldon Whitehouse, a member of the Judiciary Committee, told The Daily Beast in an email. “I hope my Republican colleagues learned a lesson from their regrettable performance at the Clarke and (Vanita) Gupta hearings and treat these nominees with respect. The right-wing donors funding attacks against Biden Justice nominees will no doubt encourage outbursts directed at judicial candidates; Republicans would be better off ignoring that encouragement.”
The Judiciary committee has not yet voted on Clarke’s nomination to head the civil rights division at the Justice Department. Gupta was confirmed last week for the No. 3 position at Justice with a 51-49 vote as Republican Lisa Murkowski joined all Democrats. Gupta withstood a brutal campaign of misinformation led by Cornyn, who called her a liar for denying she ever supported the decriminalization of all drugs. He relied for his false claim on a 2012 editorial in which she said simple possession should be decriminalized.
Her alleged support for defunding the police was another favorite GOP trope. She said in her testimony before the Judiciary Committee that political leaders should “heed calls from Black Lives Matter and Movement for Black Lives activists to decrease police budgets and the scope, role and responsibility of police in our lives.” Republican Ted Cruz, among others, said that was the same as defunding the police altogether. But it was Cornyn who had the biggest burr under his saddle, going back to 2003 when Gupta, then a lawyer with the NAACP Legal Defense and Educational Fund, uncovered dozens of fabricated drug charges brought against mainly Black men in Tulia, Texas, while Cornyn was state attorney general—an embarrassment on his watch that apparently left him with a score to settle despite letters of support for Gupta from leading law enforcement groups that Republicans used to care about and take their marching orders from.
The question now with the first of Biden’s judges coming under scrutiny, will the Republicans be able to find pay dirt as they mount their attacks—or will they just make stuff up?
Dan Goldberg, legal director at the Alliance for Justice, a liberal advocacy group, notes that when his group and others on the left went after President Trump’s judicial nominees, they did deep dives into their judicial record if there was one, their writings going back to college, and their social media profiles. “When we appraised Trump judges, we were able to point to their writings and decisions that turned back the clock, and we haven’t seen that here yet,” he said, with Republicans just launching loose attacks instead. But while Democrats managed to pick off a few conspicuously unqualified nominees, Trump succeeded in getting over 200 mostly white, mostly male conservative judges confirmed, including nearly as many (54) to the powerful Court of Appeals as the 55 his predecessor, Barack Obama, got in eight years.
Beginning this week, Democrats plan hearings every other week in an effort to confirm judges on a pace comparable to what Trump managed when he had the White House and Republicans controlled the Senate. Biden has over a hundred vacancies to fill, including 13 on Circuit courts and 85 on District courts—a number big enough to offer an alternative ledger of justice more suited to a rapidly changing world. If Democrats stick together and their 50-seat margin holds, they can impact the courts just like Trump did.