Potential Biden Supreme Court pick joins fray over Trump Jan. 6 subpoena
Ketanji Brown Jackson, seen by Democrats as a top contender for a future Supreme Court vacancy, is one of three judges assigned the weighty task of reviewing former President Trump’s bid to block a congressional subpoena for records related to the Jan. 6 attack.
For Jackson, who has served on the U.S. Court of Appeals for the D.C. Circuit for just six months, her vote in the potentially landmark constitutional case would likely figure as the most distinguishing feature of her judicial record if she ultimately runs the gauntlet of a polarized Supreme Court confirmation process.
“Judge Jackson’s role in the executive privilege fight will no doubt play a prominent spot in a nomination hearing if, as anticipated, she is ultimately selected as the next nominee for the Supreme Court by President Biden,” said Bradley Moss, a national security law expert and partner in the law firm of Mark S. Zaid.
Jackson is widely considered a leading prospect to replace Justice Stephen Breyer, 83, should he choose to retire during Biden’s presidency. On the 2020 campaign trail, Biden vowed to nominate the first Black female Supreme Court justice, and many court watchers see Jackson, a former Breyer clerk, as a fitting successor to the court’s oldest justice.
If Jackson, 51, were ultimately seated on the Supreme Court, she would be the youngest member of the minority three-justice liberal wing alongside Justices Sonia Sotomayor, 67, and Elena Kagan, 61.
Court watchers who spoke to The Hill said the battle lines over her potential nomination would likely reflect her handling of the clash over Trump administration records.
The upcoming dispute that will be heard by Jackson and two other appellate judges is freighted with political significance: The first-of-its-kind court fight pits congressional Jan. 6 investigators against Trump, a former president and the de facto leader of the Republican Party, and could create a key precedent for delineating the political branches of government.
The dispute arose from a subpoena, issued by the House select committee probing the attack on the Capitol, for records related to Trump’s time in office, including telephone records and visitor logs.
Earlier this month, Trump’s bid to block the request was rebuffed by a federal judge in Washington, D.C. Among the former president’s arguments was a claim of executive privilege over the records — an assertion that was seriously weakened by Biden’s refusal to endorse it.
Trump promptly appealed to the D.C. Circuit Court of Appeals. His case, Trump v. Thompson, was then randomly assigned to Jackson and two other Democratic-appointed judges, Patricia Millett and Robert Wilkins.
The case, which the court will hear Tuesday, has enormous implications both legally and politically.
“If the courts allow Trump to undermine that investigation, they will have sharply curtailed congressional authority to investigate an effort to thwart one of the most important functions in our constitutional system, and, in that way, they will have effectively put the presidency above and outside the Constitution itself,” said Steven D. Schwinn, a professor at the University of Illinois Chicago School of Law.
It’s not the first time Jackson has been handed a stick of political dynamite.
As a federal district judge in D.C., she presided over a dispute concerning a congressional subpoena to compel the testimony of Trump’s former White House counsel, Don McGahn.
In what was the most consequential opinion of her career up to that point, then-U.S. District Judge Jackson sided with the Democratic-led House committee pursuing McGahn, ruling that Trump could not bar his testimony on the basis of absolute testimonial immunity.
In a blistering 120-page ruling that rejected Trump’s claim, Jackson held that McGahn must cooperate with congressional investigators who were looking into whether Trump had obstructed justice by pressuring McGahn to fire former special counsel Robert Mueller as he investigated Russian interference in the 2016 election.
“Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings,” Jackson wrote in her November 2019 ruling in a circuitous case that would eventually lead to McGahn testifying last June.
But while the two biggest cases of her judicial career share some similarities, the Jan. 6 subpoena is far weightier, legal experts said.
“Trump’s sweeping claims in both cases — as to executive privilege and congressional authority to investigate — threaten to fundamentally reshape the balance of powers between the White House and Congress, and threaten core tenets of our constitutional system,” Schwinn said. “Although the McGahn case was — and is — quite significant, the case involving congressional efforts to investigate the Jan. 6 insurrection overshadow it.”
During her confirmation hearings to the D.C. circuit last spring, Jackson faced a grilling from Senate Republicans, some of whom trained their fire on her decision in the McGahn case. The Trump case could play an even bigger role if she eventually faces a Supreme Court nomination.
Court watchers who spoke to The Hill emphasized that Jackson has a reputation as a fair, balanced and serious judge and that the case’s political dimensions would not sway her one way or the other.
Still, if Jackson votes against Trump in the pending case, they said, it’s a near certainty that Republicans would use it against her if she is eventually tapped for the high court.
“The chance is 100 percent that Republicans will use her vote against her,” said Mark Tushnet, a law professor at Harvard. “The only interesting question is how they would spin a vote for Trump against her — probably to say that it shows that she casts her votes with an eye to how it’s going to benefit her.”
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