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Ketanji Brown Jackson Supreme Court Hearings: Day 3

Judge Ketanji Brown Jackson, the first Black woman nominated to the Supreme court, returned to Capitol Hill on Wednesday for the third day of her historic confirmation hearings.


What You Need To Know

  • Judge Ketanji Brown Jackson returned to Capitol Hill on Wednesday for the third day of her historic confirmation hearings
  • A Gallup poll released Wednesday says 58% of Americans support her confirmation to the Supreme Court, the highest the company has measured since Chief Justice John Roberts in 2005
  • Wednesday’s session opened up with Republicans criticizing Senate Judiciary Committee Chairman Dick Durbin, D-Ill., for “editorializing” after some of them concluded their questioning Tuesday
  • On Tuesday, Republicans grilled Jackson about her record on child porn cases, defending Guantanamo detainees and even, at one point, her religious faith

Jackson is facing 30 minutes of questioning from the last two members of the Senate Judiciary panel who did not speak Tuesday – Sen. Thom Tillis, R-N.C., and Sen. Jon Ossoff, D-Ga. – followed by 20 minutes of follow-up from the full committee.

Wednesday’s session opened up with Republicans criticizing Senate Judiciary Committee Chairman Dick Durbin, D-Ill., for “editorializing” after some of them concluded their questioning Tuesday.

On Tuesday, Sen. John Cornyn, R-Texas, asked Jackson why she accused of former President George W. Bush and former Defense Secretary Donald Rumsfeld of being “war criminals” in a legal filing when, as a federal public defender, she represented a Sept. 11 terror suspect detained at Guantanamo Bay. 

Following a break, Durbin returned to dispute Cornyn’s characterization of the filing. 

“Your filing was part of your professional responsibility to zealously advocate for your clients,” Durbin told Jackson. “In those petitions, the individuals raised more than a dozen claims for relief, one of which was an allegation that the government had sanctioned torture against the individuals, which constituted war crimes. … So to be clear, there was no time where you called President Bush or Secretary Rumsfeld a quote for criminal close quote.”

Cornyn said Wednesday he had a problem with Durbin’s defense of Jackson. 

“Now I don’t understand the difference between calling somebody a ‘war criminal’ and accusing them of war crimes,” Cornyn said. 

“I just want to lodge a protest and say that I don’t think it’s appropriate for the chairman after every time somebody on this side of the aisle asks questions of the judge, you come back and you denigrate and you attack and you criticize a line of questioning,” the Texas senator said.

Sen. John Kennedy, R-La., said he, too, though Durbin’s actions were inappropriate.

Durbin said he had the right to make those comments during “chairman’s time” and that previous chairmen, including Republican Sen. Lindsey Graham, had done the same. GOP senators, however, argued Durbin was going too far with his remarks.

Responding to a question from Ossoff, Jackson addressed her 2019 ruling where she determined that former White House counsel Don McGahn had to comply with a congressional subpoena, in which she wrote that “presidents are not kings.”

“Our constitutional scheme, the design of our government, is erected to prevent tyranny,” Jackson said Wednesday. “The framers decided after experiencing monarchy, tyranny and the like, that they were going to create a government that would split the powers of a monarch in several different ways.”

The separation of powers outlined in the U.S. Constitution, Jackson said, was both “consistent” with her judicial philosophy and “crucial to liberty.”

“It is what our country is founded on,” Jackson said. “And it’s important, as consistent with my judicial methodology, for each branch to operate within their own sphere.”

“That means, for me, that judges can’t make law, judges shouldn’t be policymakers,” she continued. “That’s a part of our constitutional design, and it prevents our government from being too powerful and encroaching on individual liberty.”

Jackson told Ossoff that her younger brother, Ketajh, a former police officer who served in the Army and was deployed to Iraq, helped inform her views on public service.

“I understand the need for law enforcement, the importance of having people who are willing to do that important work, the importance of holding people accountable for their criminal behavior,” she said. “I also as a lawyer and a citizen, believe very strongly in our Constitution and the rights that make us free.”

“As proud as we are of his service, as much as we know it’s important, law enforcement is a dangerous profession,” she continued. “As family members, you worry when you don’t get the phone call, when you haven’t heard for a couple of days, when you hear about things in the news in the community.”

“That’s the kind of person my brother is,” Jackson said. “That’s the kind of service that our family provides, and for me, what that meant was an understanding that to defend our country and its values, we also needed to make sure that when we responded as a country to the terrible attacks on 9/11, we were upholding our constitutional values – that we weren’t allowing the terrorists to win by changing who we are.”

“I joined with many lawyers during that time who were helping the courts figure out the limits of executive authority consistent with what the framers have told us is important, the limitations on government,” she added. “I worked to protect our country. My brother worked on the front lines, and it was all because public service is important to us.”

“It seems as though you’re a very kind person, and that there’s at least a level of empathy that enters into your treatment of a defendant that some could view as maybe beyond what some of us would be comfortable with, with respect to administering justice,” Sen. Tillis said, asking about Jackson’s record of sentencing.

“My attempts to communicate directly with defendants is about public safety, because most of the people who are incarcerated — via the federal system and even via the state system — will come out, will be a part of our communities again,” she said in response to Tillis’ questioning. “So it is to our entire benefit, as Congress has recognized, to ensure that people who come out stop committing crimes.”

As a public defender, she said, many defendants did not take responsibility for their offenses because “they were bitter, they were angry, they were feeling victimized because they didn’t get a chance to say what they wanted to say, because nobody explained to them that drug crimes are really serious crimes.”

“Nobody said to them, ‘Do you understand that there are children who will never have normal lives because you sold crack to their parents, and now they’re in a vortex of addiction?'” Jackson continued, adding that as a judge, she sought to convey “that I am imposing consequences for your decision to engage in criminal behavior.”

“I was the one in my sentencing practices who explained to those things in an interest of furthering Congress’s direction, that we’re supposed to be sentencing people so that they can ultimately be rehabilitated to the benefit of society as a whole,” Jackson said.

The first tense moment of the day came when Sen. Graham, R-S.C., opened up the 20-minute questioning portion of the hearings by questioning Jackson about child sexual abuse and child pornography, undocumented immigrants voting, abortion and treatment of past judicial nominees.

Graham asked Jackson if she watched any part of the Kavanaugh hearings, which she said she did not. Durbin replied that and she “had nothing to do with the Kavanaugh hearing” Jackson said she did not “have any comment on what procedures took place in this body regarding Justice Kavanaugh.”

Jackson and Graham went back and forth in a fiery exchange about child pornography, in which the South Carolina lawmaker said: “All I can say is that your view of how to deter child pornography is not my view. I think you’re doing it wrong.”

“What we’re trying to do is be rational in our dealings with some of the most horrible kinds of behavior,” she told Graham. “This is what our justice system is about, it’s about judges making determinations in meting out penalties to people who have done terrible things.”

“She filibustered every single answer,” Graham, who interrupted and spoke over Jackson numerous times when she attempted to answer his questions, said.

Graham, who supported Jackson’s confirmation last year to the D.C. circuit court, immediately left the hearing room following his questioning. 

A new Gallup poll released Wednesday says that 58% of Americans support Jackson’s confirmation to the Supreme Court, the highest support measured by a recent candidate since Chief Justice John Roberts’ nomination in 2005. 

According to Gallup, most other nominees were in the low 50% range, including current Justices Sonia Sotomayor (54%), Clarence Thomas (52%), Amy Coney Barrett (51%) and Samuel Alito (50%), the late Justice Ruth Bader Ginsburg (53%) and Merrick Garland (52%), whose nomination was blocked by Republicans. Justices Elena Kagan, Brett Kavanaugh and Neil Gorsuch all came in below 50%, per Gallup.

Jackson’s nomination has the overwhelming support of Democrats, 88-6, as well as a majority of independents, 55-33, according to Gallup; Republicans oppose Jackson’s nomination 53-31. For contrast, 89% of Republicans supported Barrett, compared to 15% of Democrats.

Despite the support, it’s unclear how many Republican senators will vote to back Jackson’s confirmation.

Republican Sens. Tillis and Cornyn both said they are open to voting in favor of Jackson, despite not supporting her appeals court confirmation last year.

“I think it’s reasonable to suggest that because I didn’t support her at the circuit judge level it’s like I’m starting with a ‘lean no,'” Tillis told NBC News. “Give me a basis for getting to ‘yes.'”

“I’m still open to the possibility of supporting the judge,” Cornyn told NBC News, but added that he is leaning toward a no.

But most lawmakers on both sides of the aisle concede that Jackson is likely to be confirmed as the first Black woman to serve on the high court.

“You will – and you will – become a member of the U.S. Supreme Court,” Vermont Sen. Patrick Leahy said.

“America is ready for the Supreme Court glass ceiling to shatter,” said Durbin.

Of the historic nature of her confirmation, Jackson said that diversity in the judiciary is important “because it lends and bolsters public confidence in our system.”

“We have a diverse society in the United States,” she continued. “There are people from all over who come to this great nation and make their lives. And when people see that the judicial branch is comprised of a variety of people who have taken the oath to protect the Constitution and who are doing their best to interpret the laws consistent with that oath, it lends confidence that the rulings that the judge, that the court is handing down are fair and just.”

“I have been so touched by the numbers of people who’ve reached out to me in this period of time, to say how much it has meant to their daughters, to their sons, to the next generation, that I’ve been appointed, nominated and hopefully confirmed,” she added.

On Tuesday, Jackson described her three-pronged judicial philosophy. She said she first tries to ensure she’s “proceeding from a position of neutrality” by clearing her mind of “any preconceived notions about how the case might come out and setting aside any personal views.” She said she then takes into account the parties’ arguments and the factual record. The final step is the “interpretation and application of the law to the facts in the case” as well as court precedent, Jackson said. 

“I have developed a methodology that I use in order to ensure that I am ruling impartially and that I am adhering to the limits on my judicial authority,” she said. “I am acutely aware that as a judge in our system, I have limited power and I am trying in every case to stay in my lane.”

She later added that she thinks her record “clearly demonstrates that I am an independent jurist that I am ruling in every case consistent with the methodology that I’ve described, that I’m impartial. I don’t think that anyone can look at my record and say that it is pointing in one direction or another, that it is supporting one viewpoint or another.”

Not only would Jackson make history as the first Black woman on the high court, she would be just the third Black person, the second woman of color and the sixth woman to become a justice. If nominated, there would be four women on the court — accounting for nearly half the seats — for the first time. 

Tuesday’s hearing, a more than 12-hour affair, saw Republicans grill the federal appeals judge about her record, specifically about child porn cases, in an attempt to paint her as soft on crime – telegraphing a strategy the party might look to use in the run-up to the 2022 midterm elections and 2024’s presidential contest.

Other Republican lines of questioning centered on critical race theory, a political lightning rod but an issue not presently facing the high court, her work defending Guantanamo detainees and even, at one point, her religious faith.

“You have a wonderful family, you should be proud,” Graham, R-S.C., asked on Tuesday. “And your faith matters to you. What faith are you, by the way?”

After a back-and-forth, Jackson explained that she was “reluctant to talk about my faith in this way,” adding: “As you know there is no religious test in the Constitution.”

Graham justified his line of questioning by hearkening back to Democrats’ line of questioning during the hearings for now-Justice Amy Coney Barrett – specifically California Sen. Dianne Feinstein’s “the dogma lives loudly within you” comment during a 2017 appeals court confirmation hearing – and ultimately said he was confident Jackson could rule fairly regardless of faith.

At one point, Texas Sen. Ted Cruz asked Jackson about a book called “Antiracist Baby” which he said was being taught to younger students at Jackson’s daughter’s school.

“Do you agree with this book that is being taught for kids that babies are racist?” the Texas senator and 2024 presidential hopeful asked.

After a long pause, she replied: “Senator, 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 do not believe in any of that.”

“I do think it’s a legitimate question to ask: Would they be asking these questions if this were not a Black woman?” Georgia Sen. Raphael Warnock, who is Black, asked of Republicans’ line of questioning on race, per the New York Times.

On the subject of child porn cases, Jackson bristled at accusations that she let offenders off the hook for their offenses: “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.”

She called child pornography a “sickening and egregious crime” and said she has tried to ensure that “the children’s voices are represented in my sentences.”

“I tell them (the offenders) about the adults who were former child sex abuse victims, who tell me that they will never have a normal adult relationship because of this abuse,” she said. “I tell them about the ones who say, ‘I went into prostitution, I fell into drugs because I was trying to suppress the hurt that was done to me as an infant.’” 

She defended her decision to hand out some sentences that were lighter than what federal guidelines called for, suggesting those recommendations, which take into account the volume of pornographic material an offender had, might be outdated in the internet age because “it’s not doing the work of differentiating who is a more serious offender in the way that it used to.”

In most of the child pornography cases where she imposed lighter sentences than federal guidelines suggested, prosecutors or others representing the Justice Department generally argued for sentences that were lighter than those recommended by federal guidelines.

Missouri Sen. Josh Hawley, who first broached the subject of Jackson’s child pornography record in a Twitter thread last week, opted to discuss specific sentencing choices she made in a number of separate cases, focusing primarily on U.S. vs. Hawkins, where she sentenced a man to three months as opposed to the two years requested by the prosecution. 

Hawkins, who was 18 when he was sentenced, was convicted of uploading videos and images showing child sexual content. 

“I’m questioning how you use your discretion in these cases,” Hawley said to Jackson in part, adding: “It really bothers me when, in every child porn case [where] you’ve had discretion, you sentence below the guidelines and below the government’s recommendation.” 

Jackson said, while she did not have the entire case summary in front of her, that the Hawkins case was particularly “unusual” as far as child pornography cases go for a number of reasons, not least of which being the defendants age when he committed the crimes, the age of some of those included in the images and the intent behind uploading the content. 

Judges must consider all of those factors, she said, when considering handing down a sentence.

“Congress has given the judges not only the discretion to make the decision, but requires judges to do so on an individualized basis, taking into account not only the guidelines, but also various factors, including the age of the defendant, the circumstances of the defendant, the terrible nature of the crime, the harm to the victims — all of these factors are taken into account and the probation office assists the court in determining what sentence is sufficient, but not greater than necessary,” Jackson said. 

Hawley ultimately commended Jackson for her thorough answers to his “tough” questions, saying while she was “very responsive” and that he “applaud(s) her for not saying things like, well, I can’t talk about that,” there are professional disagreements between the two meaning he likely “just can’t vote” for her Supreme Court nomination. 

Other senators took issue with Jackson’s work with certain federal inmates. While working in the federal public defender’s office in the District of Columbia, Jackson was assigned four Guantanamo Bay detainees, later continuing some of her work with them in private practice.

“Federal public defenders don’t get to pick their clients,” she testified Tuesday. “They have to represent whoever comes in, and it’s a service. That’s what you do as a federal public defender. You are standing up for the constitutional value of representation.”

Graham said he had no issue with Jackson defending Guantanamo detainees, but grilled her on filing briefs as a private attorney that argued against the executive branch ordering their indefinite detention.

“Respectfully, Senator, it was not my argument,” Jackson explained. “I was filing an amicus brief on behalf of clients including, the Rutherford Institute, the Cato Institute and the Constitution Project.”

“When you sign on to a brief, does it not become your argument?” Graham asked.

“It is not, Senator, if you are an attorney and you are representing a client,” Jackson answered.

“Advocates to change this system, like she was advocating, would destroy our ability to protect this country,” Graham told Durbin in a heated exchange. “We’re at war; we’re not fighting a crime. This is not some passage-of-time event. As long as they’re dangerous, I hope they all die in jail if they’re going to go back to kill Americans.”

Graham, who earlier had cited recidivism rates of Guantanamo detainees, stormed out of the hearing room immediately after that rant.

Shortly later, Cornyn asked Jackson about accusing Bush and Rumsfeld of being “war criminals” in a legal filing when she was a public defender. 

“I don’t know you well, but I’ve been impressed by our interaction and you’ve been gracious and charming,” Cornyn said. “Why in the world would you call Secretary of Defense Rumsfeld and George W. Bush war criminals in a legal filing? It seems so out of character for you.”

Jackson said she didn’t recall making such a reference, but added: “I was representing my clients and making arguments. I’d have to take a look at what you what you meant. I did not intend to disparage the president or the secretary of defense.”

In a 2005 district court filing that named Bush and Rumsfeld as respondents, Jackson did not directly refer to them as “war criminals,” but she made a claim on behalf of one Guantanamo detainee that Bush and Rumsfeld sanctioned torture, which constituted “war crimes and/or crimes against humanity” in violation of federal and international laws.

Sen. Dianne Feinstein, D-Calif., opened up her line of questioning by asking about reproductive rights, which comes as the country awaits the high court’s ruling in a major case related to Mississippi’s 15-week abortion ban and could significantly weaken the landmark decisions in Roe v. Wade and Planned Parenthood v. Casey.

“Roe and Casey are the settled law of the Supreme Court concerning the right to terminate a woman’s pregnancy,” Jackson said.

Jackson also refused to weigh in on questions about expanding the Supreme Court, calling it a “policy question for Congress.” She said she believed judges should not answer questions about political issues. She also said the Supreme Court has established an individual’s right to bear arms as a “fundamental right.”

On Monday, Jackson and Judiciary Committee members gave their opening remarks. On Thursday, outside witnesses and the American Bar Association — which last week said Jackson was “well qualified,” its highest rating — will deliver testimony.

Hawkins, who was 18 when he was sentenced, was convicted of uploading videos and images showing child sexual content. 

 

“I’m questioning how you use your discretion in these cases,” Hawley said to Jackson in part, adding: “It really bothers me when, in every child porn case [where] you’ve had discretion, you sentence below the guidelines and below the government’s recommendation.” 

 

Jackson said, while she did not have the entire case summary in front of her, that the Hawkins case was particularly “unusual” as far as child pornography cases go for a number of reasons, not least of which being the defendants age when he committed the crimes, the age of some of those included in the images and the intent behind uploading the content. 

 

Judges must consider all of those factors, she said, when considering handing down a sentence.

 

“Congress has given the judges not only the discretion to make the decision, but requires judges to do so on an individualized basis, taking into account not only the guidelines, but also various factors, including the age of the defendant, the circumstances of the defendant, the terrible nature of the crime, the harm to the victims — all of these factors are taken into account and the probation office assists the court in determining what sentence is sufficient, but not greater than necessary,” Jackson said. 

 

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