Washington • Supreme Court nominee Ketanji Brown Jackson forcefully defended her record as a federal judge Tuesday, pushing back against Republican assertions that she was soft on crime and declaring she would rule as an “independent jurist” if confirmed as the first Black woman on the high court.
Republicans aggressively questioned Jackson on the sentences she has handed down to sex offenders in her nine years as a judge, her advocacy on behalf of terror suspects at Guantanamo Bay, her thoughts on critical race theory and even her religious views. At one point, Sen. Ted Cruz of Texas read from children’s books that he said are taught at her teenage daughter’s school.
Several GOP senators grilled her on her child pornography sentences, arguing they were lighter than federal guidelines recommended. She responded that she based the sentences on many factors, not just the guidelines, and said some of the cases had given her nightmares.
Could her rulings have endangered children? “As a mother and a judge,” she said, “nothing could be further from the truth.”
Sen. Mike Lee of Utah was one of the Republicans who questioned the nominee on past sentencing decisions but also asked her opinion on the division of power within federal and state governments.
(Carolyn Kaster | AP) Sen. Mike Lee, R-Utah, during Supreme Court nominee Judge Ketanji Brown Jackson's confirmation hearing before the Senate Judiciary Committee Tuesday, March 22, 2022, on Capitol Hill in Washington.
Lee spoke at length about his own judicial and political philosophy and paraphrased part of Federalist No. 78 by Alexander Hamilton from the Federalist Papers.
“Will, as expressed by Hamilton, refers to what the law should be. Judgment pertains to what the law is. The judicial branch has the latter power, but not the former. The legislative branch has the former, but not the latter,” Lee told the nominee.
The senator then asked Jackson if laws determine the outcome of a case or if outcomes of a case determine the law — and again stressed his point that lawmakers make law, not judges.
“The law and the facts of the case determine the outcome of cases,” Jackson explained.
During his half-hour-long interview with the nominee, Lee also asked Jackson about the 9th and 14th Amendments — with both agreeing that it was wrong for the government to treat people differently based on race — and of her views of the Commerce Clause and Section 230 of the Communications Decency Act.
Generally, Section 230 provides some immunity to technology companies for the content that is distributed across their platforms on the internet. Lee asked Jackson if Congress had the authority to provide conditions to the immunity offered in Section 230.
“Senator, I can’t comment on a particular issue about whether or not it is constitutional or not [...] It would be relevant, I think, as to whether or not the government is seeking to regulate along viewpoint lines under the 1st Amendment. That is something that is generally impermissible,” Jackson responded.
In what Judiciary Committee Chairman Dick Durbin, D-Ill., described as “a trial by ordeal,” Jackson attempted to answer GOP concerns and also highlight the empathetic style that she has frequently described when she is handing down sentences. The committee’s Republicans, several of whom have their eyes on the presidency, tried to brand her — and Democrats in general — as soft on crime, an emerging theme in GOP midterm election campaigns.
Jackson told the committee that her brother and two uncles served as police officers, and that “crime and the effect on the community, and the need for law enforcement — those are not abstract concepts or political slogans to me.”
Tuesday’s hearing was the first of two days of questioning after Jackson and the 22 members of the panel gave opening statements on Monday. On Thursday, the committee will hear from legal experts before an eventual vote to move her nomination to the Senate floor.
President Joe Biden chose Jackson in February, fulfilling a campaign pledge to nominate a Black woman to the Supreme Court for the first time in American history. She would take the seat of Justice Stephen Breyer, who announced in January that he would retire after 28 years on the court. Jackson would be the third Black justice, after Thurgood Marshall and Clarence Thomas, and the sixth woman.
Barring unexpected developments, Democrats who control the Senate by the slimmest of margins hope to wrap up Jackson’s confirmation before Easter, though Breyer is not leaving until the current session ends this summer.
She said the potential to be the first Black woman on the court is “extremely meaningful” and that she had received many letters from young girls. Jackson, who grew up in Miami, noted that she had not had to attend racially segregated public schools as her own parents did, “and the fact that we had come that far was, to me, a testament to the hope and the promise of this country.”
Her nomination also “supports public confidence in the judiciary,” Jackson said.
Responding to Republicans who have questioned whether she is too liberal in her judicial philosophy, Jackson said she tries to “understand what the people who created this law intended.” She said she relies on the words of statutes but also looks to history and practice when the meaning may not be clear.
Democrats have been full of praise for Biden’s Supreme Court nominee, noting that she would not only be the first Black woman but also the first public defender on the court, and first with experience representing indigent criminal defendants since Justice Marshall.
Republicans praised that experience, too, but also questioned it, focusing in particular on work she did roughly 15 years ago representing Guantanamo Bay detainees. Jackson said public defenders don’t pick their clients and are “standing up for the constitutional value of representation.” She said she continued to represent one client in private practice because her firm happened to be assigned his case.
Picking up on a thread started by Missouri Sen. Josh Hawley and amplified by the Republican National Committee in fundraising emails, Cruz questioned Jackson on her sentences for child pornographers, at one point bringing out a large poster board and circling sentences he said he found egregious.
Cruz — who along with Hawley is a potential 2024 presidential candidate — asked Jackson if “the voice of the children” was heard.
Again noting that she is a mother, Jackson defended her decisions by saying she takes into account not only sentencing guidelines but also the stories of the victims, the nature of the offenses and the defendants’ histories.
“A judge is not playing a numbers game,” she said. “A judge is looking at all of these different factors.”
The White House has rejected Hawley’s criticism as “toxic and weakly presented misinformation.” And sentencing expert Douglas Berman, an Ohio State law professor, wrote on his blog that while Jackson’s record shows she is skeptical of the range of prison terms recommended for child pornography cases, “so too were prosecutors in the majority of her cases and so too are district judges nationwide.”
Beyond crime, Republicans raised issues that have proved winning for them in recent campaigns.
Jackson bristled at questions from South Carolina Sen. Lindsey Graham, who voted for her confirmation as an appeals court judge last year but has openly expressed his frustration after President Joe Biden picked her over a South Carolina judge. Graham asked her about her religion, and how often she goes to church, in angry comments referring back to what he said was unfair criticism of Justice Amy Coney Barrett’s Catholicism ahead of her 2020 confirmation.
Jackson — who thanked God in her opening statement and said that faith “sustains me at this moment” — responded that she is a Protestant. But she said she is reluctant to talk about her faith in detail because “I want to be mindful of the need for the public to have confidence in my ability to separate out my personal views.”
On critical race theory, a controversial topic particularly in some public schools, she told Cruz: “I’ve never studied critical race theory, I’ve never used it, it doesn’t come up in my work as a judge.”
Asked about abortion, Jackson readily agreed with comments that Justices Barrett and Brett Kavanaugh made when they were up for confirmation. “Roe and Casey are the settled law of the Supreme Court concerning the right to terminate a woman’s pregnancy. They have established a framework that the court has reaffirmed,” Jackson said.
That line of questioning from Sen. Dianne Feinstein, D-Calif., and Jackson’s answers bypassed a key point: The court right now is weighing whether to overrule those cases that affirm a nationwide right to abortion.
The White House said Tuesday that Biden had watched part of the hearings and was proud of Jackson’s “grace and dignity.”
The president was struck by how “she swiftly dismantled conspiracy theories put forward in bad faith,” said White House deputy press secretary Chris Meagher.
Associated Press writers Jessica Gresko, Lisa Mascaro, Josh Boak, Colleen Long and Kevin Freking in Washington and Aaron Morrison in New York contributed to this report.
