For Jackson, who has served in the U.S. Court of Appeals for the D.C. Circuit for just six months, her vote in the potential 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,” stated Bradley Moss, a national security law expert and partner in the Law Office of Mark S. Zaid.
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Jackson is considered a top prospect to replace Justice Stephen Breyer, 83, should he choose to retire during Biden’s Presidency. On the 2020 campaign trail, Biden pledged 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.
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If Jackson, 51, were ultimately seated on the Supreme Court, she would be the youngest member of the minority three-justice liberal wing, along with Justices Sonia Sotomayor, 67, and Elena Kagan, 61.
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Court watchers who spoke to The Hill suggested the battle lines over her potential nomination would likely reflect her handling of the clash over Trump administration records.
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The upcoming dispute that will be heard by Jackson and two other appellate judges freighted with political significance: The first-of-its-kind court fight pits congressional Jan. 6 investigators against Trump, former President and de facto leader of the Republican Party, and could create a key precedent for delineating the political branches of government.
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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 President Biden's refusal to endorse it.
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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.
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The case, which the court will hear Tuesday, has immense 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,” asserted Steven D. Schwinn, a professor at the University of Illinois Chicago Law School.
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