How good a judge is Biden’s nominee to the D.C. Circuit?

Joe Biden has nominated Judge Ketanji Brown Jackson to serve on the U.S. Court of Appeals for the District of Columbia. She currently sits on the U.S. District Court in D.C.

This nomination was 100 percent expected. In fact, there has been speculation that Biden promised to nominate Judge Jackson to pacify radicals unhappy with the selection of Merrick Garland for Attorney General (as if the selections of radical race mongers Vanita Gupta and Kristen Clarke for top DOJ jobs weren’t enough). Garland’s move to the Justice Department opened up a seat on the D.C. Circuit.

There is also speculation that Judge Jackson is being groomed for the Supreme Court. Such speculation is reasonable when a youngish judge is placed on the D.C. Circuit (Jackson is 50). After all, three current Justices — Clarence Thomas, John Roberts, and Brett Kavanaugh — took that path to the Supreme Court. So did Antonin Scalia and Ruth Bader Ginsburg.

What about Judge Jackson’s credentials? On paper, they are stellar. She has an undergraduate degree (magna cum laude) from Harvard and a law degree from there as well (cum laude). She was an editor of the Harvard Law Review and clerked for Justice Breyer on the Supreme Court.

Jackson has worked, among things, as an assistant federal public defender, appellate litigator at a major law firm, and vice chair of the U.S. Sentencing Commission. She also has almost a decade of experience as a federal district court judge.

Judge Jackson is a left-liberal, but doesn’t appear to fall outside the mainstream of left-liberal thinking on legal issues. All of this — her credential and her ideology — point in the direction of Senate confirmation.

However, Ed Whelan, who follows these things much more closely than I do, raises a salient point. He contends that Judge Jackson is a mediocre jurist at the district court level.

He writes:

Jackson is not highly regarded as a judge. Inquiries I have made recently of folks knowledgeable about her work confirm that she continues to have a middling reputation. This criticism, I’ll emphasize, is on grounds of quality, not ideology. Indeed, she is not regarded as ranking high among the ten or so district judges that President Obama appointed to the federal district bench in D.C. . . .

This assessment of Jackson finds support in her record on appeal:

Jackson has a striking record of reversals by the D.C. Circuit—including by liberal judges—in her high-profile rulings:

*In 2019, Jackson issued a 122-page opinion in support of her preliminary injunction (in Make the Road New York v. McAleenan) barring the Department of Homeland Security from enforcing its decision expanding the reach of its expedited-removal process to the statutory limit. Jackson ruled (among other things) that plaintiffs had sufficiently established that her court had jurisdiction over the challenge to the decision; that Congress “did not intend to commit implementation of the expedited removal process it authorized entirely to agency discretion”; that plaintiffs had procedural claims under the Administrative Procedure Act; and that the DHS decision was arbitrary and capricious.

The D.C. Circuit reversed Judge Jackson. All three judges on the panel agreed that she got things very wrong. They differed only on which error required vacating her injunction.

In her majority opinion, Judge Patricia Millett, joined by Judge Harry Edwards—both are liberals appointed by Democratic presidents—held that Congress did indeed commit to DHS’s “sole and unreviewable discretion”—that’s the statutory language—the judgment whether to expand expedited removal to the statutory limit. The DHS decision was therefore not subject to review under the APA, and Jackson’s preliminary injunction was improper. . . .

*In 2018, in what the Washington Post hailed as a victory for federal-employee unions, Jackson wrote a 119-page opinion enjoining executive-branch officials from implementing provisions of three of President Trump’s executive orders that (in the Post’s summary) “aimed at making it easier to fire employees and weaken their representation.”

But in a unanimous ruling by an ideologically diverse panel (in American Federation of Government Employees v. Trump), the D.C. Circuit held that the district court lacked jurisdiction to decide the case, as a federal statute vests adjudication of federal labor disputes in the Federal Labor Relations Authority, subject to direct review only in the D.C. Circuit. Judge Thomas Griffith wrote the panel opinion, which was joined most notably by Obama appointee Sri Srinivasan as well as by Bush 41 appointee Raymond Randolph.

*In a 118-page ruling in 2019, Brown ruled that the House Judiciary Committee could sue in federal court to enforce its subpoena to compel former White House Counsel Don McGahn to testify. After a divided D.C. Circuit panel ruled that the constitutional separation of powers forbade federal courts from enforcing the subpoena, the en banc D.C. Circuit rejected the panel’s conclusion. But the panel—again divided, with the same two appointees of Republican presidents in the majority—then ruled that the House lacked statutory (or equitable) authority to enforce its subpoena.

(Emphasis added)

There is a good chance, then, that Judge Jackson is an affirmative action nominee for the D.C. Circuit. In other words, she was selected because of her race, which trumped her mediocre record.

If so, this won’t derail her nomination. Democrats will tout her “diversity.”

Republicans aren’t likely to call Jackson on the ground that she is mediocre. Indeed, as Whelan suggests, conservatives should perhaps be glad that Biden didn’t select someone more formidable for such an important judgeship and for possible grooming as a Supreme Court Justice.

Still, it’s unsettling to think that the quality of the appellate bench — especially that of the all-important D.C. Circuit — might be diluted in the name of diversity.

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