Senators on the Judiciary Committee got their first chance Tuesday to ask questions of Judge Ketanji Brown Jackson, President Joe Biden’s nominee for the Supreme Court.
Jackson, a judge on the D.C. Circuit Court of Appeals since June, fielded questions about her prison sentences for sex offenders, her defense of terrorism suspects, and her personal faith.
Here are seven big moments from Day Two of her Senate confirmation hearings.
1. Child Porn Sentences and ‘Extreme Disparities’
Judiciary Chairman Dick Durbin, D-Ill., opened with questions and leaped ahead of Republicans in asking about whether Jackson handed down light sentences in child pornography cases as a D.C. District Court judge for eight years.
“As a mother and a judge who has had to deal with these cases, I was thinking that nothing could be further from the truth,” Jackson said regarding the matter, first raised by Sen. Josh Hawley, R-Mo.
Hawley last week highlighted seven cases, and again in remarks Monday, in which Jackson as a District Court judge gave sentences to child sex offenders that were lighter than what prosecutors requested and federal sentencing guidelines recommend.
“These are some of the most difficult cases that a judge has to deal with because we’re talking about pictures of sex abuse of children, we’re talking about graphic descriptions that judges have to read and consider when they decide how to sentence in these cases, and there’s a statute that tells judges what they’re supposed to do,” Jackson said in response to Durbin. “Congress has decided what it is that a judge has to do.”
Jackson added: “These people [convicted of child porn charges] are looking at 20, 30, 40 years of supervision.”
She also said the law is based on the volume of child pornography that offenders used to receive in the mail, before such material became available online.
“The way that the guidelines are now structured, based on that set of circumstances, it’s leading to extreme disparities in the system because it’s so easy for people to get volumes of this kind of material now by computers,” Jackson, a former member of the U.S. Sentencing Commission, told Durbin, adding:
So it’s not doing the work of differentiating who is a more serious offender in the way that it used to. So the [Sentencing] Commission has taken that into account. Perhaps even more importantly, courts are adjusting their sentences in order to account for the changed circumstances. But it says nothing about the court’s view of the seriousness of this offense.
Jackson called such crimes “sickening and egregious,” and noted that sentencing extends beyond time behind bars to supervised release.
“I impose a strict sentence and all of the additional restraints that are available in the law,” Jackson said. “These people cannot use computers in a normal way for decades. I am imposing all of those constraints because I understand how significant, how damaging, how horrible this crime is.”
Hawley cited sentences imposed by Jackson that have been consistently lighter than either federal guidelines or what prosecutors requested.
“I understand how significant, how damaging, how horrible this crime is,” she said.
With each child porn offender she sentences, Jackson said, she relays the story of a victim. She cited one case in which a woman’s life was ruined:
She cannot leave her house because she thinks everyone she meets will have seen her pictures on the internet. They are out there forever at the most vulnerable time of her life. So she’s paralyzed. I tell that story to every child porn defendant as a part of my sentencing, so that they understand what they have done.
By early evening, when Hawley got a chance for questions, he asked about Jackson’s sentencing in specific cases, including three months for an 18-year-old convicted of possessing a large collection of child porn. The prosecutor asked for two years.
Jackson, defending that sentence, said it was “an unusual case that had a number of factors that the government was pointing out, that the probation office was pointing out.” She added:
I sent this 18-year-old to three months in federal prison under circumstances that were presented in this case because I wanted him to understand that what he had done was harmful, that what he had done violated the law and needed to punished, not only by prison but also by all of the other things that the law requires by a judge who is sentencing in this area.
Several committee Democrats noted that the Fraternal Order of Police has endorsed the Jackson nomination, challenging the suggestion that she has been soft on crime.
2. ‘Never Studied Critical Race Theory’
Sen. Ted Cruz, R-Texas, pressed Jackson about her views on critical race theory. He referenced a speech in which she cited critical race theory, which holds that someone is either an oppressor or oppressed based on his or her race.
Having noted earlier that they knew each other at Harvard Law School, Cruz said critical race theory originated at their alma mater. He asked Jackson to define it from her point of view.
“It is an academic theory that is about the ways in which race interacts with various institutions,” Jackson replied. “It never comes up in my work as a judge. It’s never something I’ve studied or relied on. It wouldn’t be something I would rely on if I was on the Supreme Court.”
Cruz said critical legal theory initially was viewed as class-based struggle. Critical race theory grew out of that and frames every conflict as race-based.
“Do you think that’s an accurate way of viewing society?” Cruz asked.
“Senator, I don’t think so. I’ve never studied critical race theory. I’ve never used it,” Jackson replied. “It doesn’t come up in the work that I do as a judge.
Cruz followed up: “With respect, I find that a curious statement because you gave a speech in April 2015 at the University of Chicago.”
In that speech, Jackson at one point said, “Sentencing is just plain interesting because it melds together myriad types of law, criminal law, and of course constitutional law, critical race theory.”
Cruz asked Jackson: “You described in a speech to a law school what you were doing as critical race theory. What did you mean by that when you gave that speech?”
“With respect, Senator, the quote that you are mentioning there was about sentencing policy,” Jackson said. “It’s not about sentencing. I was talking about the policy determinations of bodies like the Sentencing Commission when they look at a laundry list of various academic subjects as they consider what the policy should be.”
Cruz again asked her what she meant after his staff put up cardboard posters showing pages from the book.
“What I meant was that slide does not show the entire laundry list of different academic disciplines that I said related to sentencing policy,” Jackson responded in reference to the posters. “But none of that relates to what I do as a judge.”
Cruz later asked whether Jackson believed critical race theory is being taught in school. She said she believes it is taught only in law school.
Later, Cruz showed a cardboard display of story books for young children at Georgetown Day School, books that push critical race theory to the point of asserting that babies are born racist.
Jackson is a board member for Georgetown Day School. But she said the board had no control over curriculum.
“When you asked me if I thought this was taught in schools, my understanding was that critical race theory as an academic concept was taught in law schools,” Jackson said. “To the extent that you were asking the question, I thought you were addressing public school. Georgetown Day School, just like the religious school Justice [Amy Coney] Barrett was on the board of, is a private school.”
3. ‘Couldn’t Let the Terrorists Win’
Under questioning, Jackson explained her work as a federal public defender on behalf of terrorism suspects held at the U.S. detention facility at Guantanamo Bay, Cuba.
She said that after the Sept. 11, 2001, terrorist attacks, her brother fought in the military. She noted that members of Congress served their country in their own way.
“After 9/11, there were also lawyers who recognized that our nation’s values were under attack,” Jackson said, adding:
That we couldn’t let the terrorists win by changing who we were, fundamentally. What that meant was that the people who were being accused by our government of having engaged in actions related to this, under our constitutional scheme, were entitled to representation, were entitled to be treated fairly. That’s what makes our system the best in the world.
At the same time, Jackson said, she didn’t have full say in who she defended. She said she started at the federal public defender’s office shortly after the Supreme Court decided that detainees at Guantanamo Bay could seek review of their detention.
“Those cases started coming in, and federal public defenders don’t get to pick their clients,” Jackson said.
Among those Jackson defended was a Taliban officer believed to be a leader of a terrorist cell. In defending Khiali-Gul, Jackson accused the U.S. government of engaging in torture tactics.
4. ‘Agree With Justice Barrett’ on Court-Packing
Several Republican senators raised the prospect of court-packing on Monday, when Jackson had little time to speak.
Durbin claimed Tuesday that Senate Minority Leader Mitch McConnell, R-Ky., is the “one living senator who has effectively changed the size of the Supreme Court.”
Durbin was referring to McConnell’s blocking Senate consideration of and votes on then-President Barack Obama’s March 2016 nomination of Merrick Garland to serve on the high court. The court operated with eight justices rather than nine until Justice Neil Gorsuch, nominated by President Donald Trump, was confirmed and seated in April 2017.
Jackson said she had the same view as Justice Amy Coney Barrett expressed in her Senate confirmation hearing about court-packing, which many Democrats advocate as a way to ensure the Supreme Court is more liberal by increasing the number of justices.
Barrett said she couldn’t share her views on a controversial matter of public policy.
“I agree with Justice Barrett in her response to that question, when she was asked before this committee,” Jackson said. “Again, my North Star is the consideration of a proper role of a judge in our constitutional scheme. In my view, judges should not be speaking on political issues, and certainly not a nominee for a position on the Supreme Court. So I agree with Justice Barrett.”
Sen. Charles Grassley, R-Iowa, later noted that both Justice Stephen Breyer and former Justice Ruth Bader Ginsburg said during their confirmation hearings that they opposed court-packing. Grassley said that he took that to mean Jackson disagrees with their decision to answer the question.
5. ‘Bought by Dark Money’?
Several Republican senators brought up the fact that the liberal legal group Demand Justice had promoted Jackson for the Supreme Court. Demand Justice was founded as a fiscally sponsored group of the left-leaning consulting company Arabella Advisors.
Grassley, the senior Republican on the Judiciary Committee, referenced a repeated claim by a fellow committee member, Sen. Sheldon Whitehouse, D-R.I.
“During his opening statement yesterday, one member of this committee suggested that the Supreme Court has been bought by dark money groups,” Grassley said to Jackson. “Do you agree that the Supreme Court has been bought by dark money groups?”
Jackson didn’t concur with Whitehouse’s view.
“I don’t have any reason to believe that that is the case,” Jackson said. “I have only the highest esteem for the members of the Supreme Court, whom I hope to be able to join if I’m confirmed, and for all of the members of the judiciary.”
When it was his turn, Whitehouse admitted there was dark money on both sides of the aisle, but said Republican dark money is worse.
“There is a difference, I believe, between a dark money interest rooting for someone and right-wing dark money interests having a role in actually picking the last three Supreme Court justices,” Whitehouse said.
6. Abortion as ‘Settled Law’
The Supreme Court recently heard arguments in a case that has the potential to overturn Roe v. Wade, the 1973 decision that legalized abortion across the nation.
The high court previously upheld its Roe decision in the case of Planned Parenthood v. Casey.
Sen. Dianne Feinstein, D-Calif., immediately began asking about maintaining abortion. Feinstein noted that two justices, Barrett and Brett Kavanaugh, have said Roe is settled precedent.
“I do agree with both Justice Kavanaugh and Justice Barrett on this issue,” Jackson said. “Roe and Casey are the settled law of the Supreme Court concerning the right to terminate a woman’s pregnancy.”
7. ‘Fairly Judge a Catholic?’
During her opening remarks Monday, Jackson thanked God and talked openly about her faith.
On Tuesday, Sen. Lindsey Graham, R-S.C., asked Jackson about her faith.
“Senator, I am Protestant, nondenominational,” she replied.
“Could you fairly judge a Catholic?” Graham asked.
Before she could finish her answer, though, Graham answered for her.
“I think the answer would be yes. I believe you can. I’m just asking this question because—how important is your faith to you?”
Jackson responded: “Personally, my faith is very important, but as you know, there is no religious test in the Constitution under Article 6. It’s very important to set aside one’s personal views.”
Graham later followed by referencing a comment by Feinstein, who scrutinized Barrett’s Catholic faith during her confirmation hearing for a seat on the 7th U.S. Circuit Court of Appeals.
“How would you feel if a senator up here said of your faith, ‘The dogma lives loudly within you and that’s of concern’? How would you feel if someone on our side said, ‘You attend church too much for me,’ or, ‘Your faith is a little bit different to me,’ and they suggest it would affect your decision?”
Jackson said, “Senator, I um … ”
Graham jumped in: “I would if I were you. I found it offensive when they said it about Judge Barrett.”
Graham went on to recall other attacks by Democrats, such as their opposition to Justice Samuel Alito and their two-year filibuster to prevent Judge Janice Rogers Brown from serving on the D.C. Circuit.
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