Conservatives’ first attack on Biden’s judicial nominees falls flat

On March 30, President Biden announced his intent to nominate Judge Ketanji Brown Jackson to the D.C. Circuit Court of Appeals. Judge Jackson is a stellar and remarkably qualified nominee. She is a graduate of Harvard Law School and clerked at all levels of the federal courts: for District of Massachusetts Judge Patti Saris, First Circuit Judge Bruce Selya and Justice Breyer. She worked as a federal defender and as an appellate litigator. In 2009, President Obama nominated Jackson to serve on the Sentencing Commission, and she was unanimously confirmed by the Senate. She was subsequently nominated and then unanimously confirmed to the District Court in 2013, where she has earned a reputation as a fair, impartial jurist with a demonstrated commitment to equal justice.

Given how eminently qualified she is, critics have manufactured attacks that she has a “striking record of reversals” and “a history of writing opinions that have been overwhelmingly reversed by her prospective colleagues.” This is ridiculous. Judge Jackson has ruled in over 550 cases. She has been reversed or vacated and remanded in 11 — less than two percent of her decisions.

For proof that these attacks against Judge Jackson are baseless, look no further than the records of conservative judges that Republicans supported. Former Senator Orrin Hatch once described now Fifth Circuit Judge Leslie Southwick — who had a similar reversal rate (reversed in 21 out of 927 cases, about 2.2%) — as having an “unblemished record,” and that he was “very impressed with such a low reversal rate over such a long period of distinguished service.” Judge Amul Thapar, the first appeals court judge Trump nominated, disclosed that as a district judge he had been reversed 15 times, again more than Judge Jackson (out of 631 cases, about 2.4%.) In one overturned case, he ruled in favor of a prison nurse who went on a five-day vacation without giving a detainee insulin, despite knowing of the detainee’s need for the medication. The detainee died after two days in jail without insulin. Despite this, and other reversals (and other concerning aspects of Thapar’s record), he was not only elevated to the Sixth Circuit, but was subsequently put on Trump’s “short list” for potential future nomination to the Supreme Court.

The fact is that trial court judges are occasionally reversed; reversals are unavoidable when a judge authors hundreds of opinions. Judges disagree on interpretations of the law, and higher courts reverse lower-court decisions. In fact, the D.C. Circuit reverses 13% of the cases it reviews on appeal, and the national average for such reversals across all circuit courts is 9%.

It is beyond disingenuous to suggest that Judge Jackson’s reversed cases, which represent only a minute fraction of her record, make her unqualified for a seat on the D.C. Circuit.

In fact, Neil Gorsuch, who the Republicans changed the Senate rules to confirm four years ago this week, made such a point to the Senate Judiciary Committee. At the precise moment Gorsuch was answering questions from senators, the Supreme Court unanimously reversed a detrimental legal standard issued by Gorsuch — one unprecedented in its narrowness — that gutted equal educational opportunities for children with disabilities and had real negative consequences for children in the Tenth Circuit. One student’s father, Jeffrey Perkins, stated to the Senate, “Judge Gorsuch thought that an education for my son that was even one small step above insignificant was acceptable.”

When asked about the stunning circumstance of being unanimously reversed by every member of the Supreme Court, Gorsuch said:

I understand today that the Supreme Court has indicated that [my decision] is incorrect. That is fine. I will follow the law. Now sometimes — I think it was Justice Jackson who said just because I made a mistake unknowingly yesterday does not mean I should make a mistake knowingly today.

Ketanji Brown Jackson is an excellent judge who, during her years on the bench, has been a thoughtful and fair-minded jurist. That is more than can be said for the many ideological Trump nominees that Republicans had no problem confirming. It is time for Republicans to end their baseless smear campaign against Judge Jackson and support her well-deserved elevation to the D.C. Circuit Court of Appeals.