Judge Ketanji Brown Jackson listens to questioning from Republican U.S. Senators during a confirmation hearing. Screenshot from U.S. Senate Judiciary Committee livestream.
WASHINGTON – Republicans on the Senate Judiciary Committee on Tuesday sharpened their criticisms of U.S. Supreme Court nominee Ketanji Brown Jackson, probing her work as a public defender on behalf of terrorism suspects, the judicial sentences she has handed down for child pornography offenses and her views of critical race theory.
Jackson defended her record in a handful of tense exchanges with Republican members, clearly disagreeing with accusations from Texas Sen. Ted Cruz and Missouri Sen. Josh Hawley that she was too lenient in the child pornography sentencing decisions.
Democrats on the evenly split panel said Jackson’s record as a federal trial judge and appeals judge on the D.C. Circuit Court showed she was an impartial jurist.
All but two of the 22 senators on the committee had 30 minutes to question Jackson during a session that stretched more than 13 hours, following Monday’s opening statements. Committee Chairman Dick Durbin announced that two senators, Democrat Jon Ossoff of Georgia and Republican Thom Tillis of North Carolina, would take their turns on Wednesday.
The hearing opened with questions from Durbin, D-Ill., that gave Jackson an opportunity to preempt several lines of attack expected from Republican senators. Nearly all are expected to vote on the floor against her nomination.
Jackson described to Durbin her process for removing her own biases as a judge and articulated a vision of a constrained federal judiciary, a day after Republican senators complained that Jackson had not disclosed her judicial philosophy and said they feared she would be an activist justice. She repeated throughout the day her process and that she wanted to “stay in my lane” as a judge, not advocate for policy positions.
“I am not importing my personal views or policy preferences,” she said. “The entire exercise is about trying to understand what those who created this policy or this law intended.”
On the issue of sentencing child pornography offenders, victims’ statements in such cases were powerful, Jackson said, and she in every case considered the views of the children affected. She did not subscribe to the idea that those convicted of possession — and not production — were only “lookers,” she said.
“I say to them that there is only a market for this kind of material because there are lookers, that you are contributing to child sex abuse,” she said. “And then I impose a significant sentence.”
She still has nightmares, she said, about a victim who developed agoraphobia — a fear of leaving the home — because the prospect that strangers had seen images of her sexual abuse was overwhelming.
Democrats on the panel touted endorsements Jackson had won from leading police groups to rebut the accusation Jackson is not tough enough on criminals.
Jackson, who grew up in Miami and would be the first person from Florida to sit on the court, said law enforcement had long been part of her family life. She had two uncles who were police officers, who, she remembered, would come to family gatherings straight after a shift and place their guns atop tall furniture to keep out of reach of children.
She also has a younger brother who worked as a police officer in Baltimore, she said.
South Carolina Republican Sen. Lindsey Graham, a former defense attorney in the U.S. Air Force, said he would not hold against Jackson her work as a public defender on behalf of terrorism suspects held at a U.S. Naval Base at Guantánamo Bay, Cuba. Graham said he understood that public defenders don’t choose their clients and that defense attorneys are an important part of the legal system.
But Graham, who voted to confirm Jackson for her current role as a judge on the D.C. Circuit Court of Appeals, did take issue with arguments Jackson raised as a public defender, including that the United States committed war crimes against Guantánamo Bay detainees, an apparent reference to a case when Jackson represented a detainee tortured by military handlers at the detention facility.
Jackson said she was preserving legal arguments on behalf of her clients.
Republican Sen. John Cornyn of Texas also objected to Jackson’s use of the term war criminal in cases that named then-President George W. Bush and Defense Secretary Donald Rumsfeld in their official capacities. Jackson argued in a suit that the government violated the Geneva Conventions. Durbin objected that the argument was among several by Republicans that was inaccurate.
Graham criticized a legal brief Jackson filed after joining a private practice that argued so-called enemy combatants at Guantánamo Bay should be tried or freed, not held indefinitely.
“I hope that they all die in jail if they’re going to go back and kill Americans,” he said. “It won’t bother me one bit if 39 of them die in prison. That’s a better outcome than letting them go.”
Jackson said she was representing her clients’ views, not her own.
Graham also spent much of his 30 minutes complaining about Democratic senators’ treatment of past Supreme Court nominees picked by Republican presidents.
Graham probed Jackson about her religious beliefs and to place on a scale of 1-10 her level of faith. When Jackson objected to providing details about her beliefs, Graham said he asked because Democrats raised the issue about Justice Amy Coney Barrett, who was nominated by President Donald Trump, during her confirmation hearings.
“There’s two standards here,” Graham said.
Cruz, who overlapped with Jackson for two years at Harvard Law School, accused Jackson of endorsing the teaching of critical race theory. It is a legal theory, taught in higher education and much maligned by conservatives, that argues race is a prevailing factor in all parts of American life.
Cruz brought and displayed blown-up posters showing pages in books taught at Georgetown Day School, a private school in Washington, D.C., where Jackson sits on the board.
Cruz argued that such books taught that “babies are racist” and asked if Jackson endorsed that view.
“Senator,” Jackson began to respond before pausing for more than six seconds. “I do not believe that any child should be made to feel as though they are racist or though they are not valued or though they are less than, that they are victims, that they are oppressors. I don’t believe in any of that.”
The board does not oversee curriculum at the school, Jackson said.
Hawley spent his 30 minutes questioning Jackson about sentencing in child pornography cases. Hawley was the first senator to raise the issue in tweets last week.
Hawley focused much of his time on a 2013 case in which Jackson sentenced an 18-year-old defendant to three months in federal prison for what she referred to as “heinous” and “egregious” offenses. Prosecutors had sought a two-year prison term in the case.
Jackson said that she didn’t have the entire record of the case in front of her but added that she remembered considering that case to be “unusual,” in part because the defense attorney was arguing for probation and the 18-year-old defendant had just graduated from high school.
Earlier in the day, Jackson said “nothing could be further from the truth” than Hawley’s accusations that she didn’t take child sexual abuse cases seriously. A judge must follow sentencing statutes, she said, which encompass more than prosecutors’ recommendations.
‘Opportunity for role models’
Sen. Dianne Feinstein, D-Calif., noted Jackson would be the fourth woman on the nine-justice Supreme Court, the closest to gender parity the court had reached.
Jackson, who would be the first Black woman on the court, said that kind of milestone was important to young people who may not see people of their backgrounds reflected in elite institutions like the Supreme Court.
“One of the things that having diverse members of the court does is it provides for the opportunity for role models,” Jackson told Feinstein. “Having meaningful numbers of women and people of color, I think matters.”
Jackson also told Feinstein that she considered Supreme Court decisions upholding the right to abortion “settled.”
Tennessee Sen. Marsha Blackburn, the last senator to question the judge, quoted from a brief Jackson wrote that described anti-abortion advocates as a “hostile, noisy crowd of in-your-face protestors.”
“I find it incredibly concerning that someone who is nominated to a position with life tenure on the Supreme Court holds such a hostile view toward … a mainstream belief that every life is worth protecting,” Blackburn, a Republican, said.
Jackson said she wrote the brief more than two decades ago, on behalf of clients. The description referred specifically to a crowd that women seeking abortions had to get through, not anti-abortion protestors generally, she said.
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