Biden Nominates Ketanji Brown Jackson
President Biden promised to nominate a black woman to be a justice on the Supreme Court. With his nomination of Judge Ketanji Brown Jackson, he has followed through on that promise.
She now serves on the U.S. Court of Appeals for the District of Columbia Circuit. She joined the Court of Appeals last June after eight years as a federal trial judge after an appointment by President Obama to be a judge on the District of Columbia Circuit Court.
There is no longer a requirement for a significant majority vote in the Senate to confirm a Supreme Court nominee. A simple majority is all that is now required to confirm a nominee. While the Senate is split 50-50, the vice-president has a tiebreaking vote if that is necessary.
Federal Employee Unions Celebrate Nomination
The nomination of Ketanji Brown Jackson to be a Supreme Court justice is not a surprise. As President Biden said while campaigning, “union members were the supporters who ‘brung me to the dance.‘”
Unions in general and the Biden administration are very much in sync. The unions do not criticize the administration and the administration works to award benefits to unions. With this nomination, President Biden can satisfy his promise to nominate a black woman to be on the Supreme Court and reward his union followers at the same time.
Federal employee unions should be, and are, ecstatic with the Biden nomination. In a very short time after the nomination, the American Federation of Government Employees issued a press release stating:
We applaud President Biden for nominating Judge Jackson to serve on the U.S. Supreme Court. Her previous work as a public defender, as an advocate for reforming our criminal sentencing laws, and prior judicial rulings show she will affirm the rights of regular American workers and everyday citizens while holding accountable those who break the law – even the most powerful among us.
The AFGE press release also cited a decision from Judge Jackson while she was a circuit court judge. The union wrote:
While serving as U.S. district judge for the District of Columbia circuit, Judge Jackson issued a deciding ruling in a lawsuit brought by AFGE and a dozen other unions challenging a set of executive orders issued by the Trump administration that illegally denied workers their right to representation. That single ruling safeguarded federal workers’ union rights and demonstrated the limits of a corrupt administration. Her reasoning demonstrated exactly the kind of principled, independent judicial thinking that should be a hallmark of the highest court in our land.
Why Unions Love This Nomination
That quote is accurate about her decision and that she overturned a set of Executive Orders issued by President Trump.
What the press release does not remind readers is that the Court of Appeals for the District of Columbia Circuit—the same court where Judge Jackson now sits as a judge—subsequently overturned her decision. (See U.S. Appeals Court Kills Injunction on Trump Labor Relations EOs for more information.)
As labor relations expert Bob Gilson wrote in summarizing the Appeals Court decision:
The unions involved in the suit claimed all kinds of constitutional violations i.e., that the Federal Labor Relations Authority (FLRA) wasn’t competent to hear objections to the orders, etc., etc. D.C. District Court cases in which this court has jurisdiction in Federal Sector labor relations cases are literally rarer than hen’s teeth. The District Court had decided that the unions were right and that it (the District Court) could bypass the Federal Labor-Management Relations Statute’s administrative appeals process which provides direct access from an FLRA decision into the U.S. Circuit.
Now, I don’t want to claim that a district court judge was looking for a way to put her mark on a presidential action, but the circuit court found nothing in her decision supporting her logic or rationale. It appeared to some that she took the union’s arguments and used them in their entirety to justify her decision.
Role of Ketanji Brown Jackson in Promoting Federal Employee Unions
The reason federal employee unions are happy about the nomination can be seen from these observations:
The decision offers a theory of collective bargaining for the federal government relying more on a somewhat extreme left-wing view of the process than either that envisioned by the governing statute, 40 years of Federal sector negotiations, or any semblance of common sense.
EO Decision Provides a Look into Judge’s Far-Left Philosophy of Collective Bargaining
Judge Jackson applies a personal view or understanding of bargaining in her decision. Her view, intensely pro-union, is that collective bargaining cannot be limited in any way except by the statute while the clear language of the law gives any government-wide rule or regulation such authority (see above). It appears crystal clear that an Agency issuing government-wide regulations has the authority to limit bargaining on such matters. That principle has remained unchallenged since the passage of the Act in 1978.
DC District Judge Ignores Critical Statutory Provision in Executive Order Case
As a judge on the District of Columbia Court of Appeals, Ketanji Brown Jackson has been consistent. In a very recent case, she also ruled against a Trump administration decision involving federal employee unions. In that case, the court’s decision was to overturn policy guidance from the Federal Labor Relations Authority (FLRA) that placed some restrictions on topics appropriate for bargaining in the federal government.
This decision concluded:
[W]e hold that the FLRA’s decision to abandon its de minimis exception in favor of a substantial-impact threshold was not sufficiently reasoned, and thus is arbitrary and capricious in violation of section 706 of the Administrative Procedure Act….
And, as is often stated, elections have consequences. In this instance, the union’s candidate for president won the last presidential election. One of the benefits arising from their unbridled support is it is likely a woman who is an outspoken pro-union advocate, and who is willing to insert personal opinions in these types of cases, may soon occupy a position as a Supreme Court justice.
While we do not know what cases will be going before the Supreme Court and which may be voted on by a Judge Jackson, there is little doubt her views will be applauded by the unions who, as President Biden noted: “brung me to the dance.”
