KBJ, from failing law firm associate to associate Supreme Court Justice

Ketanji Brown Jackson presents an unusual career trajectory for a Supreme Court Justice or, indeed, for a lawyer.  After clerking on the Supreme Court for Justice Breyer, she became an associate at a prestigious law firm.  There’s nothing unusual about that.

However, after only a year-and-a-half, she left that firm to join a small practice that specialized in negotiating resolution of disputes.  A year-and-a-half later she moved on to a position as a staff lawyer on the U.S. Sentencing Commission.

This downward trajectory would normally raise yellow flags. However, as Ed Whelan documents, Jackson explains it as a way of doing “the ‘working mother’ thing.” Taking less demanding jobs enabled her “to spend some time with my wonderful husband and girls.”

It’s a plausible explanation.  If accurate, it’s commendable.

However, there is reason to believe that Jackson wasn’t cutting it at her law firm.  A former partner at the firm tells me she was a poor associate – “intellectually lazy” and “not very bright.”

He adds that partners were relieved when she left the firm.  It saved them from having to make a difficult decision about whether to terminate her employment.  Even 20 years ago, no law firm relished firing a black attorney, much less one who had clerked on the Supreme Court.

Some of Jackson’s former law firm colleagues, and not just conservatives, were “horrified” when she became a federal judge.  Yet, now she will serve on the Supreme Court.

Given what my source, whom I trust, reports, “couldn’t cut it” seems like a more plausible explanation for Jackson’s strange career trajectory than “spend more time with the family.”

Jackson isn’t the same person she was 20 years ago. Almost certainly, she has advanced intellectually. However, it’s hard to imagine that she could advance from a mediocre law firm associate — and my source says she was worse than mediocre — to a Supreme Court-caliber legal mind.

Do Jackson’s writings as judge suggest that she has? Seemingly not. A legal writing guru, putting things as politely as he could, said that some might find her work “plodding, perhaps even painful.” In Ed Whelan’s estimation, “if someone applying for a clerkship submitted a writing sample of [the quality of this Jackson opinion], the applicant’s prospects would be damaged.”

One tell-tale sign, in my view, is Jackson’s persistent use of the phrase “the instant case” to refer to the case she’s deciding. Calling it “this case” should do, unless she thinks that using the fancier phrase somehow adds gravitas to her work.

Jackson’s undistinguished career as an attorney can’t be a secret.  Given the legal community grapevine, key Senate staffers very likely were aware of it. Therefore, key Senators very likely were, as well. And surely staffers and Senators knew about the mediocrity of Jackson’s writing as a judge.

However, Republican Senators decided not to question the quality of the nominee’s legal mind.  In fact, some stipulated to it.  Minority Leader Mitch McConnell called her "clearly a sharp lawyer."   Senator Josh Hawley, a key member of the Senate Judiciary Committee, declared, “She’s a very smart, very accomplished attorney.” 

It’s understandable that Republicans didn’t want to attack the intellect of the first black female Supreme Court nominee.  Even if they had wanted to, I doubt anyone who worked with Jackson at any point in her career would have gone on the record to back up such a claim.

Accordingly, Senate Republicans focused their fire on the nominee’s ideology, as manifested in some of her decisions. This approach was never going to derail Jackson, but an unsubstantiated attack on the quality of her legal mind would not have accomplished this either. It would only have subjected Senators to the charge of racism.

There’s also the question of whether the ascension of a mediocre jurist to the Court is bad for conservatives. One might argue that, since the Democrats had the power to confirm pretty much any nominee, Republicans are better off with a Justice who lacks what it takes to provide intellectual leadership to the Court in the coming decades.

However, I think the administration was correct in concluding that it is better served by a Justice who will reliably vote leftist as a matter of reflex, than by one who is intellectually curious and agile, and who thus might break ranks on occasion. Elena Kagan, age 62, can likely provide intellectual leadership for years to come, and the Democrats presumably will have other opportunities to nominate and confirm another top legal thinker.

Finally, I want to add that Team Biden could have nominated a sharper Justice without violating the promise to select a black female. It’s true that eliminating an entire demographic group — any group — from consideration for any job decreases the likelihood of making a stellar selection.

However, there are black female jurists who, from all that appears, would have added value to the Supreme Court. Leondra Kruger, for one.

By all accounts, she excelled in the office of the U.S. Solicitor General, arguably the best legal shop in America, where she argued twelve cases before the Supreme Court. And her writing as an appellate judge drew praise from the same analyst who suggested that Jackson’s writing made for painful reading.

Unfortunately, Joe Biden’s team decided not just that the next Supreme Court Justice must be black and female, but also that she must be unlikely to have an original thought about the law. Another chapter, it seems to me, in the death of left-liberal intellectual life.