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Circuit Pick Jackson’s Reversals a Likely Target for GOP (1)

April 28, 2021, 8:46 AM; Updated: April 28, 2021, 2:12 PM

Republicans are expected to make U.S. District Judge Ketanji Brown Jackson the focus when President Joe Biden’s first five judicial nominees appear before the Senate Judiciary Committee on Wednesday.

Jackson, who was nominated for a seat on the D.C. federal appeals court, is considered a contender for further elevation as the first Black female justice should a vacancy open on the Supreme Court.

“I almost feel bad for her because she’s going to be destroyed,” said Josh Blackman, a professor at South Texas College of Law Houston. She’s well equipped to handle that criticism, he said. “But Republicans are going to try to destroy her, to tarnish her so she won’t get picked for the Supreme Court.”

Conservative activists are pointing to decisions Jackson has made as a federal trial court judge that were reversed on appeal as a potential blemish on her record.

“She’s someone who has a record of being regularly overturned by the D.C. Circuit, including the most liberal judges in that circuit,” Carrie Severino, president of the conservative group Judicial Crisis Network.

Ed Whelan, a senior fellow of the conservative Ethics and Public Policy Center who writes about judicial nominees, called Jackson’s record of reversals “striking.”

Conservatives are seizing Jackson’s 2019 ruling that provisions in three Trump executive orders conflicted with federal employee rights to collective bargaining. That decision was reversed unanimously by the D.C. Circuit, which held Jackson didn’t have the jurisdiction to hear the case.

Jackson was also reversed by the D.C. Circuit in a 2019 case involving a challenge to a Department of Homeland Security decision to expand the definition of non-citizens who could be subject to expedited removal from the country. In 2-1 a decision, the D.C. Circuit ruled that the DHS decision wasn’t reviewable under the Administrative Procedure Act.

Severino also cited Jackson’s use of “shocking” political language in her 2019 decision regarding the House Judiciary Committee’s subpoena request for former White House Counsel Don McGahn to testify during its investigation of potential meddling in the 2016 presidential election. In her 120-page decision, Jackson wrote “presidents are not kings.”

That decision was reversed 2-1 for a second time by a panel of the D.C. Circuit after a previous reversal was vacated by the full court. The most recent reversal is also set be reheard by the full court.

Not all conservatives are quite as concerned about the reversals.

John Malcolm, vice president of the conservative Heritage Foundation’s Institute for Constitutional Government and director of its judicial studies division, said good judges can be reversed for a number of reasons, such as the makeup of the panel they get on appeal. “I don’t think that her opinions are shoddy,” he said.

‘Enthusiastic’ Support

Jackson also has the support of one of the judges involved in some of the D.C. Circuit decisions reversing her. Judge Thomas Griffith, who recently retired from the court, sent a letter to the committee expressing his “enthusiastic” support for Jackson’s nomination.

“Although she and I have sometimes differed on the best outcome of a case, I have always respected her careful approach and agreeable manner, two indispensable traits for success in collegial body,” Griffith wrote.

Jackson listed all three of those decisions in her Senate Judiciary Committee questionnaire when asked for the 10 most significant cases she presided over. She was appointed to the district court by Barack Obama.

Progressives have preemptively pushed back against those arguments, saying the occasions in which Jackson has been overturned are few and far between.

“During her eight years on the District Court for the District of Columbia, Judge Jackson has written nearly 600 opinions and been reversed less than twelve times,” Nan Aron, president of the liberal Alliance for Justice wrote in a letter to Judiciary Chair Richard Durbin (D-Ill.) on Monday.

“Her record on the District Court demonstrates that she is a fair, impartial jurist with a clear commitment to equal justice,” Aron said.

The second panel will be for District of Colorado nominee Regina Rodriguez and District of New Jersey nominees Zahid Quraishi and Julien Neals. Quraishi would be the first Muslim-American federal judge.

Early Outreach

The Biden administration wasted no time in reaching out to Jackson as a potential pick for a new seat. In answers to the Judiciary Committee questionnaire, Jackson said she was approached by White House Counsel Dana Remus on Jan. 26, six days after Biden was sworn in. Biden’s decision to nominate Judge Merrick Garland as attorney general opened up a potential vacancy.

Jackson will be on the first panel with Candace Jackson-Akiwumi.

Jackson-Akiwumi, Biden’s nominee for a Seventh Circuit seat, was approached by Remus Jan. 11. She was asked the following day whether she would be interested in being considered for the Chicago-based court, Jackson-Akiwumi said in answers to the committee questionnaire.

The American Bar Association on Tuesday released ratings for all five judicial nominees scheduled for the Wednesday hearing. All were rated “Well Qualified,” the ABA panel’s top rating.

(Updates with Griffith letter in 13th paragraph.)

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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