Female Black Attys Look To Jackson's 'Fresh Perspective'

(March 11, 2022, 4:14 PM EST) --
Yvette McGee Brown
Yvette McGee Brown
J'Naia L. Boyd
J'Naia L. Boyd
Leah Ward Sears
Leah Ward Sears
Judge Ketanji Brown Jackson's nomination to the U.S. Supreme Court is a watershed moment for Black women practicing appellate law, many of whom are watching with "immense pride" and "joy" as they witness one of their own on the verge of becoming the first Black female justice to serve on the high court in its 232-year history.

One of those watching is Jones Day partner Yvette McGee Brown, who joined the Ohio Supreme Court in 2011 as its first Black female justice.

During her time on the state's high court, Brown said she was often able to make her fellow justices see the U.S. justice system through the lens of a community whose experience with the system is quite different from their own. She's counting on Judge Jackson — now serving on the D.C. Circuit — bringing a similarly fresh perspective to the national stage.

"This nominee is deserving of respect as she goes through this process, and I sincerely hope the Senate lives up to its duty," Brown told Law360. "President Joe Biden has put up a truly qualified, impeccable individual."

With confirmation hearings set to begin on March 21, Biden's promise to nominate a Black woman to serve on the Supreme Court is seen as a long-overdue milestone that will help the high court's bench reflect the country's diversity. For those in appellate practice, Judge Jackson's expected ascension to the top echelon of the country's legal profession is a well-earned accomplishment that may influence younger Black female lawyers, and Black men too, to join the elite ranks of the appellate bar, where they are severely underrepresented.

"Her confirmation would really reemphasize why representation matters and is so important. As a Black woman attorney, and a Black woman in general, seeing one who looks like you sitting in one of the highest positions in the legal field is just inspiring," said J'Naia L. Boyd, an associate at Rivkin Radler LLP on the fim's appeals, intellectual property, commercial litigation and bankruptcy groups, told Law360.

"She's a brilliant Black woman, and she's highly qualified," Boyd said. "We're rooting for her."

According to data from the Federal Judicial Center, Black women hold 45 of the current 793 lifetime-appointed federal judgeships in active service across the country. At major U.S. law firms, they made up 3.17% of associates last year and continue to represent fewer than 1% of all partners, according to the National Association for Law Placement's diversity report released in January. Despite slight gains in 2021, fewer than 5% of partners at firms of all sizes are women of color, the report said.

"What you'll come to understand about appellate courts is that their strength is in their diversity. It's not only the intellect you should have to serve on the court, which she clearly has, but there should be diversity," Smith Gambrell & Russell LLP appellate partner Leah Ward Sears told Law360. "Everybody is a master of the law, but you can see the law through different lenses, and those lenses you see vary based on your background."

For Sears and Brown, Judge Jackson's nomination reminds them of their own trailblazing legal careers.

In 1992 at age 36, Sears became the first woman on the Georgia Supreme Court, and she later became the first Black woman chief justice for a state supreme court in the U.S. She retired from the court in 2009.

Both women reasoned that Judge Jackson's race, gender and professional background — experience in private practice, service on the U.S. Sentencing Commission and work as a public defender before joining the federal bench as a trial judge — allow her to see the law the way it is seen by average Americans. These lenses bring important perspectives to the deliberative process and facilitate a nuanced consideration of legal issues that the court has never seen, they said.

"I can't tell you how much I've learned from my colleagues on the bench who were different from me," Sears said.

This rings true for Brown, Jones Day's partner-in-charge of diversity, inclusion and advancement, whose lived experience added a depth of analysis to certain issues, particularly criminal cases. She recalled an intense debate with her colleagues on the bench over whether police officers violated a man's Fourth Amendment rights against unreasonable search and seizure when they secretly put a tracking device on his car without a warrant. The man was suspected of drug trafficking.

The justices' debate exemplified how she sometimes helped them understand how people's experiences with law and government vary based on their background.

"Many of my colleagues were so adamant that it shouldn't matter" because the car was parked on a public street, she recalled. "I said it should matter because someone could look at my son and simply say, 'Let me see where he's going today.'"

"It was hard for them not having been a Black person or having Black children to [recognize] how that power can be misused," Brown said. "I remember during oral arguments I asked the prosecutor why he just hadn't gone for a warrant, and he said, 'We didn't have probable cause.' That's exactly the point. We live in a country where the government is not allowed to just surveil you."

Despite their differences of opinion, Brown said her colleagues' views weren't malevolent.

The case, State v. Johnson, was initially stayed while the U.S. Supreme Court considered a similar issue, the former jurist said. But two years after Brown's departure, the Ohio Supreme Court ultimately concluded that the officers reasonably acted in good faith.

Biden's promise to put a Black woman on the Supreme Court if given an opportunity was born out of political urgency. After losing the first two states in the 2020 Democratic presidential primary season, the former vice president made his promise days before the South Carolina primary, where Black people make up a large share of the party's voters.

Biden secured the endorsement of Rep. James E. Clyburn, a key player in the state's Black Democratic political circle, which then helped him to win the Palmetto State's primary and put him on a path to the nomination.

Biden made good on his promise to a key wing of the Democratic base — particularly Black women, from whom the president enjoys strong political support — and late last month announced his nominee to replace Justice Stephen Breyer, for whom Judge Jackson clerked during the court's 1999-2000 term.

If confirmed, Judge Jackson would join Justice Clarence Thomas as the second Black justice on the bench. Court watchers noted that her ideology would be different from Justice Thomas', as she is expected to often vote alongside Justices Elena Kagan and Sonia Sotomayor, the court's other liberal jurists.

In addition to breaking the mold as the first Black woman nominated to the high court, Judge Jackson would also bring a different legal background. She would be the only current member of the court to have been a public defender, and she and Justice Sotomayor — the first Latina member of the high court — would be the only justices who have been trial court judges.

The president's overt use of race as a prerequisite in his selection has drawn criticism from some Republicans like Sen. Roger Wicker of Mississippi, who recently claimed the eventual nominee would be a "beneficiary" of affirmative action.

The White House pushed back at that claim, saying that Biden's promise was actually in line with the traditions of both of the country's major political parties. It also noted promises made by previous presidents, most recently Donald Trump, who followed through on his own promise to place a woman on the Supreme Court, Justice Amy Coney Barrett.

"If you want to judge her, judge her on her qualifications and put her up against anyone on the court," Brown said, pointing to Judge Jackson's credentials and extensive legal experience.

Both Brown and Sears said there is an absolute need to be intentional about bringing diversity to federal courts long composed overwhelmingly of white men. Indeed, Biden has been making unprecedented efforts in adding demographic and professional diversity to the federal bench, with most of his judicial nominees being women or people of color, and former public defenders outnumbering BigLaw partners and ex-prosecutors.

"To wipe out the vestiges of discrimination in this country, it has to be a conscious act to do so," Sears said. "There has to be an intentional effort by everyone."

--Editing by Robert Rudinger.

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