The vacancy on the Court created by the death of Antonin Scalia means that President Obama is constitutionally obligated to appoint a successor. Some names have been bandied about in the media (Judge Sri Srinivasan, Governor Brian Sandoval, Attorney General Loretta Lynch, Judge Merrick Garland) but recent news stories say that D.C. Judge Ketanji Brown Jackson and 8th Circuit Judge Jane Kelly are among those undergoing vetting by the Obama administration.
If either Judge Jackson or Judge Kelly is nominated and confirmed, a difficult task in today’s political climate, she would be the fifth woman to serve on the Supreme Court. Judge Jackson is currently a federal trial judge in Washington, D.C., and is a former member of the U.S. Sentencing Commission. She would be the first judge to come directly from a federal trial court, and was supported by Republicans when she was confirmed to the D.C. Circuit in 2013. Judge Kelly currently serves on the 8th Circuit Court of Appeals. She was a long-time public defender in Iowa, and was appointed to the federal bench in 2013.
Tom Goldstein from SCOTUSblog writes about Judge Jackson
Her credentials are impeccable. She was a magna cum laude graduate of Harvard College and cum laude graduate of Harvard Law School. She clerked on the Supreme Court (for Justice Stephen Breyer) and had two other clerkships as well. As a lawyer before joining the Sentencing Commission, she had various jobs, including as a public defender.
Senator Charles Grassley, from Judge Kelly’s home state of Iowa, praised her during her confirmation hearing in 2013 and urged his colleagues to confirm her.
U.S. District of Oregon Magistrate Paul Papak, who worked as a public defender with Judge Kelly, says of her
We’ve had law professors, prosecutors and politicians on the court but there hasn’t been a public defender, and that would be fantastic to have all perspectives — not just liberal or conservatives. She is the perfect candidate. She has the education, she is smart and she’s a great writer. She just brings a wealth of information and experience at her young age.
Judge Jackson or Judge Kelly would join Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan on the bench. Justices Ginsburg, Kagan, and Sotomayor asked important questions during the recent oral arguments in the Texas abortion clinic case, and pressed Texas Solicitor General about the true motivation for law. The women justices all maintained that the restrictions proposed in Texas masquerade as protection of women’s health, but in reality constitute an undue burden on women seeking an abortion. The case is Whole Woman’s Health v. Hellerstedt, No. 14-50928.
The first woman on the Supreme Court was Sandra Day O’Connor, who was appointed by Ronald Reagan in 1981 and who retired from the bench in 2006. Justice O’Connor fashioned the undue burden standard in Planned Parenthood v. Casey, 505 U.S. 833 (1992),which held that states could put some restrictions on a woman’s right to obtain an abortion as long as the restrictions did not constitute an undue burden.
In honor of women’s history month, the Law Library has put together a display honoring current and past women Supreme Court justices. It is located right outside the entrance to the Library.
Both Judge Jackson and Judge Kelly seem like very appropriate candidates. It will be interesting to see what happens!