On the second day of Senate committee interviews of Supreme Court nominee Ketanji Brown Jackson, Utah Sen. Mike Lee continued a Republican assault on the judge’s record in child pornography cases. He also quizzed Jackson on federal lands, court-packing and abortions, issues she may have to consider if she is confirmed to the Supreme Court.
Republicans on the Senate Judiciary Committee, led by Missouri Sen. Josh Hawley, have zeroed in on what he described as a “pattern of letting child porn offenders off the hook.” The critique focuses on rulings in nearly a dozen cases where she imposed sentences below federal guidelines.
Those claims have been debunked by fact-checkers who say federal judges routinely impose sentences below those guidelines in such cases.
Lee and Jackson tangled over whether she took into account computer use or the number of images an offender had in their possession when doling out punishment. Earlier in the day, Republicans asked why Jackson seemingly disregarded guidance that made computer use and the number of images an aggravating factor in sentencing. Jackson argued computers are much more commonplace than when the statute was written, making it easier to transmit large numbers of images.
“Judges have to take into account a number of factors and the guidelines, which are no longer mandatory. Judges have discretion,” Jackson said.
Lee shot back, saying those factors should carry more weight.
“It makes it more severe, not less. You don’t see this as an aggravating factor, and that is of great concern to me,” Lee said.
Jackson explained that she considered several relevant factors in every child pornography case.
“It may seem like an easy exercise. It may seem in retrospect when you look back at a few pieces of data that courts have not done what they are supposed to do. I can assure you I took every one of these cases seriously and I made my determinations in light of the seriousness of the offense,” Jackson said.
It is unclear whether the row over child pornography will have any impact on her confirmation. It certainly did not seem to sway Sen. Mitt Romney.
“It struck me that it was off course, meaning the attacks were off course that came from some,” Romney told the Washington Post. “There is no there, there.”
Lee brought up the Antiquities Act, which has become a political pingpong ball in Utah since it was used to create the Grand Staircase Escalante and Bears Ears National Monuments under Presidents Bill Clinton and Barack Obama. President Donald Trump rescinded both of those monuments only to have that action reversed by President Joe Biden. Lee noted that the law has been used to protect vast swaths of federal land, which has an outsized impact on Utah and the West.
“The federal government owns about two-thirds of the land (in Utah), which complicates our ability to do just about everything we want to do,” Lee said.
Lee said the Antiquities Act says the land to be protected should be confined to the “smallest area,” then asked Jackson if she had thoughts on the contradiction between the law and the implementation.
“Given these presidential proclamations tend to be broad, it’s difficult to tell what the limits are. Do you have any thoughts on how we can define any meaning out of that?” Lee asked.
“If I were presented with a case with that statute, I would proceed as I always have. You have to understand the arguments about the particulars of the case. Are there any precedents in this area that address what Congress intended with respect to the statute?” Jackson said.
Lee did not bring the public lands issue up by accident. Utah is likely to challenge Biden’s restoration of the two Utah monuments in court.
After briefly touching on abortion, Lee pivoted to whether Jackson believed the Supreme Court should be expanded beyond the current nine members.
“There’s nothing in the Constitution that says Congress may not change the size of the Supreme Court. There’s no limitation on that. We have for 152 years stuck with nine,” Lee said, asking if she had an opinion on the issue.
“It’s not appropriate for me to comment because of my fidelity to the judicial role. I understand it’s a political question, which is precisely why I think I am uncomfortable speaking to it,” Jackson said.
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