April 2022 Church & State Magazine

Biden Nominates Federal Appeals Court Judge To Supreme Court Slot

  Biden Nominates Federal Appeals Court Judge To Supreme Court Slot

President Joe Biden nominated Ketanji Brown Jackson, a judge on the U.S. Court of Appeals for the D.C. Circuit, to the U.S. Supreme Court Feb. 25.

If confirmed by the Senate, Jackson will take the seat currently held by Justice Stephen G. Breyer. On Jan. 27, Breyer announced his intention to retire, effective at the end of the court’s current term this summer.

In nominating Jackson, Biden has fulfilled a promise he made during the 2020 campaign to put a Black woman on the nation’s highest court.

Jackson, who was born in Washington, D.C., and raised in Miami, is the child of public school teachers who later became administrators in the Miami-Dade county school system. She’s 51 years old and has worked as an attorney in private practice, as a federal public defender and a federal judge.

She has been confirmed by the Senate on a bipartisan basis three times, most recently when she was named to her current seat on the federal appellate court last year.

Jackson has not ruled on many cases that touch on church-state separation. In a 2017 case, Tyson v. Brennan, she issued an opinion allowing an employee of the U.S. Postal Service to go forward with a religious discrimination claim. The employee claimed he had been punished for playing gospel music at his workstation while other employees who played secular music were not sanctioned.

In a 2014 case, she joined a panel rejecting an allegation of judicial misconduct brought against a federal judge who discussed religious views on the death penalty during a speech. The panel concluded that the judge had made a clear distinction between her personal views and her obligations as a judge.

Americans United noted that Jackson has made some public comments that touch on church-state issues. Speaking before the Senate Judiciary Committee in 2021, she said, “A judge is required to set aside all personal beliefs, including any religious beliefs, when she undertakes to rule in the cases to which she is assigned.”

She also stated that the government’s ability to grant blanket religious exemptions from the law is not unlimited and said the Supreme Court must “scrutinize the asserted harm of granting specific exemptions to particular religious claimants.”

Writing in The Forward, Michael A. Helfand of Pepperdine-Caruso School of Law wrote, “If confirmed, Judge Jackson’s jurisprudential orientation will likely gravitate left-of-center. But her expressed commitments with respect to church and state provide little reason to presume she will unsettle the Court’s current First Amendment doctrine.”

In light of Jackson’s scant record on church-state issues, Americans United is remaining neutral on her appointment. However, Rachel Laser, Americans United’s president and CEO, noted the historic nature of the nomination in a statement.

“Judge Ketanji Brown Jackson is an eminently qualified jurist with a proven record of fighting to bring our country closer to its promise of equal justice for all,” Laser wrote. “As the first Black woman to serve on the U.S. Supreme Court in our nation’s history, she will help ensure that the Court better reflects America and includes perspectives that have long been ignored.

“While Judge Jackson does not have an extensive record on church-state separation issues, we urge her to distinguish herself as a champion of our country’s foundational principle of separation of religion and government, which protects religious freedom for all of us. We look forward to further examining her record throughout the confirmation process.”

Concluded Laser, “We look to Judge Jackson to be a bulwark against the Court’s ultra-conservative majority, who seem set on redefining religious freedom as a sword to harm others instead of a shield to protect all of us. We deserve a justice who will defend our country’s foundational principle of separation of religion and government like our democracy depends on it – because it does.”

The Senate Judiciary Committee had begun Jackson’s confirmation hearings as this issue of Church & State went to press.


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