Supreme Court nominee Ketanji Brown Jackson appears during her confirmation hearing before the Senate Judiciary Committee on March 22, 2022. (Screen shot from Senate video)
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 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 lengthy session that began at 9 a.m. and appeared ready to stretch into the night. 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.”
She also defended her sentencing record for people convicted of possessing child pornography after some Republicans, including Tennessee Sen. Marsha Blackburn and Sen. Josh Hawley of Missouri, argued on Monday she was too lenient.
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.
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.
‘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.”
Grassley raises free speech, cameras in courtroom
Sen. Chuck Grassley of Iowa, the top Republican on the committee and the first GOP senator to question Jackson, began his 30 minutes asking her about the First Amendment and then the Second.
Jackson said that she agreed that the right to free speech applies equally to conservative and liberal protesters. In addressing Grassley’s question about the Second Amendment, Jackson noted “the Supreme Court has established that the individual right to keep and bear arms is a fundamental right.”
Grassley then moved on to one of his long-time quests, getting cameras installed in the Supreme Court. Jackson didn’t give a direct answer, saying she would want to talk with other members of the court to “understand potential issues related to cameras in the courtroom before” she took a side in the years-long debate.
“I think that’s a fair answer at this point,” he said.
Grassley asked Jackson, who if confirmed would be the first Black woman on the court, to talk about race in American society, referencing a speech she gave to the University of Chicago Law School in 2020.
During that speech, he said, Jackson quoted Martin Luther King Jr., who said that he dreamt of a day when sons of former slaves and sons of former slave owners would be able to sit down at the table of brotherhood. Jackson, in the speech, then spoke about how American culture had changed after the civil rights movement and the passage of civil rights laws.
Jackson said she still agreed with what she said in her speech, noting that her parents had attended segregated schools in Miami, but that she had not experienced segregation in education.
“The fact that we had come that far was, to me, a testament of the hope and the promise of this country, the greatness of America that in one generation we could go from racially segregated schools in Florida to have me sitting here as the first Floridian ever to be nominated to the Supreme Court of the United States,” Jackson said.
Grassley asked Jackson numerous other questions, including her view on adding justices to the Supreme Court, a proposal known as “court packing” that Republicans vehemently oppose. He also asked whether so-called “dark money groups” that don’t need to disclose who donates to the organization have “bought” the Supreme Court, which she denied, and which of the former 115 justices’ judicial philosophies most closely resembles her own.
In response to the last question, Jackson said she hadn’t studied all of their judicial beliefs, but that she came to her confirmation hearings as a trial judge whose “methodology has developed in that context.”
“I don’t know how many other justices — than Justice Sotomayor — have that perspective. But it informs me with respect to what I understand to be my proper judicial role,” Jackson said.
Jackson declined to answer the question about potentially adding justices to the Supreme Court, saying that is a “policy question for Congress.”
— Jennifer Shutt
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