Judge Ketanji Brown Jackson (Photo: Screenshot from Senate Judiciary Committee livestream.)
WASHINGTON — Members of the U.S. Senate Judiciary Committee picked up Wednesday morning where they left off Tuesday evening in questioning Supreme Court nominee Judge Ketanji Brown Jackson about her judicial philosophy, sentencing practices and personal background.
Two senators, Democrat Jon Ossoff of Georgia and Republican Thom Tillis of North Carolina, who did not question Jackson on Tuesday were allowed 30 minutes for questions Wednesday, before all 22 members of the panel would have 20 more minutes for additional questions.
The 20-minute round was the last chance for senators to question Jackson. The panel will hear Thursday from the American Bar Association and other outside witnesses.
Judiciary Chairman Dick Durbin, a Democrat from Illinois, said the committee would meet Monday to consider Jackson’s nomination, though the committee is not expected to vote for an additional week.
Tennessee Republican Marsha Blackburn asked Jackson about Supreme Court precedent on the constitutional right to bear arms.
Jackson said the Supreme Court has established the right extends to individuals, not only militias.
Blackburn also pressed Jackson on sentencing and her use of compassionate release.
“You have an unmistakable pattern of releasing criminals with dangerous backgrounds back into the community,” Blackburn said.
Blackburn also asked if Jackson considered critical race theory, an academic concept in higher education that argues race has wide-ranging impacts on American life, in her judicial work.
“Any academic theory is not considered in my sentencings,” Jackson said.
Ossoff opened his remarks with an acknowledgement of his fellow Georgia Democrat, Raphael Warnock, who is not a member of the Judiciary Committee but joined Wednesday’s hearing as a spectator.
Ossoff asked Jackson about her upbringing and her family’s values. Jackson confirmed that her brother, Ketajh Brown, was a police officer in Baltimore after he served in the U.S. Army. Two of Jackson’s uncles were also police officers and her parents, an attorney and an educator, were also involved in public service.
Ossoff also questioned Jackson about a line in an opinion she wrote that “presidents are not kings.” The 2019 opinion struck down former President Donald Trump’s claim that former White House Counsel Donald McGahn could not be compelled to testify in front of Congress.
Jackson said the founders of the United States broke the power of a monarch into three branches and that each branch — legislative, executive and judicial — was constrained in its power. Throughout the hearings, Jackson has declined to weigh in on questions she considered matters of policy better suited to the legislative or executive branches.
Ossoff said emerging technologies would complicate long-standing constitutional protections, including against unreasonable search and seizure.
“I want to urge you, should you be confirmed, to remain vigilant about how the emergence of new technologies — the way that they become ubiquitous in our lives, the way that virtual spaces are increasingly akin to physical spaces — will require the court to consider very complex questions and to seek technical advice,” he said.
He also said the court should be transparent about the “origin and funding source” of groups providing technical expertise.
Speaking again in the evening, Ossoff commended Jackson’s poise throughout nearly 23 hours of questions over two days.
“You’ve had a lot of poison thrown at you,” he said. “And you’ve responded with substance and truth, and it’s shone through.”
Sen. Thom Tillis, a North Carolina Republican, inveighed against liberal groups that advocated for adding Supreme Court seats to balance the court’s ideological center. Such groups also pushed for eliminating the legislative filibuster in the Senate and “could destroy two institutions,” the court and the Senate, he said.
“That’s a bad, bad, bad idea,” he said about adding Supreme Court seats.
Democrats on the panel and the Biden administration were surely influenced by such advocacy groups, he added. He said he did not expect Jackson to weigh in on adding Supreme Court seats. Jackson said simply she understood arguments on both sides but would decline to offer her opinion.
Tillis asked Jackson about a ruling on the release of prisoners during the early days of the COVID-19 pandemic. Tillis at the time supported the release of nonviolent prisoners, he said, but an order from Jackson appeared to advocate for the release of all prisoners, he said.
Jackson responded that the order he quoted from showed the opposite — that it denied release for the prisoner who requested it, despite the public health concern.
“I go on to say in that very opinion, Congress has indicated that we have to take each case individually,” she said. “We have to look at the harm to the community that might be caused by the release of individual people. We can’t just release everybody.”
Tillis also told Jackson he opposed abortion and worried that Jackson did not view the free speech rights of anti-abortion activists to be equal to those advocating for abortion rights.
Tillis cited a brief Jackson wrote for a client in the late 1990s or early 2000s that argued a group of anti-abortion advocates was hostile to women seeking to enter an abortion clinic.
Tillis said the brief could be read to deny free speech rights for anti-abortion activists. Jackson said the brief was “viewpoint neutral” and advocated only a path be cleared for women to enter the clinic, no matter the views of those crowding them.
During the later round of questioning, Tillis asked if Jackson had any thoughts about how to eradicate child pornography.
Tillis was considerably less antagonistic than fellow Republicans Ted Cruz of Texas and Josh Hawley of Missouri, but said they had “legitimate concerns” about some of her rulings. He added that “Congress is a part of the solution.”
Jackson, a former vice chair of the U.S. Sentencing Commission, responded that she didn’t have policy recommendations as she had not worked in sentencing policy in years.
Tillis congratulated Jackson on her conduct during the hearings.
“You presented yourself well when there was a lot of pressure and that demonstrates a certain temperament or poise,” he said.
Before questioning began Wednesday, Iowa’s Chuck Grassley, who is the ranking Republican member on the committee, jumped into a dispute raised Tuesday night over the availability of records related to Jackson’s sentencing practices.
The White House provided data from the D.C. probation office and other records related to Jackson’s sentencing of convicts as a federal trial judge to Democrats before Republicans.
“No one on our side of the aisle had access to this information,” he said.
After Republicans complained Tuesday evening they’d only just received the records, committee Chairman Dick Durbin, D-Ill., said he’d received the records some time that day.
In the second round of questioning, Grassley asked, as several other senators have, about Jackson’s judicial philosophy.
Jackson said that, unlike nominees who come from academia who may have more theoretical views of law, hers was better described as a methodology developed through practice. Central to that methodology is a view of limited judicial authority, she said.
Jackson did say she had relied on her policy preference as a trial judge in a specific instance. Grassley asked if Jackson had ever declined to impose an enhanced sentence because she opposed the enhancement policy.
Sentencing enhancements are aggravating factors in a crime — a repeated offense or a drug offense in a school zone, for example — that judges can look at to impose a stricter sentence. Enhancements have also been reported to disproportionately apply to Black convicts.
Declining to impose an enhancement is in line with judicial power, as decided by Supreme Court case law, she said.
“Given the way in which the guidelines are operating, the disparities that are created in cases, I have at times identified various enhancements that I’ve disagreed with, as a policy matter, because the Supreme Court has said that that’s the authority of a sentencing judge in our system,” she said.
In her second round of questions, Minnesota Democratic Sen. Amy Klobuchar praised Jackson’s opinion writing.
Klobuchar noted she paraphrased Jackson’s line during a presidential debate in 2019 that presidents are not kings. Klobuchar pursued the Democratic nomination for the 2020 election before endorsing now-President Joe Biden.
“I actually referred to one of your opinions from a debate stage in Los Angeles,” Klobuchar said. “Saying, ‘As a wise judge said,’ — those were my words; I guess I was ahead of my time — ‘the president is not king in America. The law is king.’”
The 65-page opinion was thorough and relied extensively on precedent, but boiled down complicated legal matters to plain language, Klobuchar said. It was also narrowly tailored, in line with Jackson’s view of a restrained judiciary.
Klobuchar asked what role both plain language and narrow rulings have in enhancing the court’s legitimacy.
Jackson said courts should strive for predictability and stability, saying that “big shifts” in legal principles undermine public confidence in courts.
Klobuchar also asked how Jackson would balance press freedoms with the need of police and prosecutors to gather evidence.
Jackson said press freedom is among the fundamental First Amendment rights, but that she would look at the specifics of a case and to Supreme Court precedent to decide any such case that came before her.
Republican Sen. Ben Sasse offered his opinion that the Supreme Court should be wary of changing its rules to allow cameras to broadcast proceedings. Sasse said the decision should be made by the court, not Congress, but weighed in as “a friend of the court.”
Sasse said he understood that transparency is a virtue, but that the presence of cameras can push people to seek to create a viral video clip or to get on cable news and distract from the serious business before the court.
“A huge part of why this institution doesn’t work well is because we have cameras everywhere,” Sasse said, less than half an hour after Sen. Ted Cruz, R-Texas, completed perhaps the most acrimonious exchange of the day. “Cameras change human behavior. We know this … We should recognize that the jackassery we often see around here is partly because of people mugging for short-term camera opportunities.”
Sasse, a former president of Midland University, also opined that there is “a trend toward shouting down and canceling opinions that are outside the left-leaning mainstream” on university campuses.
The issue was particularly important for law schools, where exposure to ideas students disagree with can help teach how to consider an alternate position.
Sasse said Jackson was “already a hero to lots and lots of kids,” and pushed her to advocate for open debate.
Jackson declined to offer an in-depth opinion because cases regarding speech on campus are working through the courts, but said it was “a fair assumption,” when Sasse offered he thought they were aligned on the issue.
Sasse was reportedly the only Republican on the Judiciary Committee who did not sign a letter seeking access to pre-sentencing reports Jackson used in child pornography cases.
Sen. Josh Hawley, a Republican, continued a line of questioning about Jackson’s sentencing of child pornography convicts.
Jackson objected to Hawley and other Republicans’ focus on sentencing in a handful of cases, repeating throughout the day that “no one case can stand in for a judge’s entire record.”
Hawley asked if Jackson regretted imposing a three-month sentence on one offender when a probation officer had recommended 18 months.
“What I regret is that in the hearing about my qualifications to be a justice on the Supreme Court, we’ve spent a lot of time focusing on this small subset of my sentences, and I’ve tried to explain–” she said, before being interrupted by Hawley.
At another point, Jackson said prosecutors had made arguments for tougher sentences, but that is only one part of the criminal justice system.
“I understand that in certain cases, the government may have made an argument, but there are other people in our criminal justice system who make arguments and the court evaluates everything as Congress has directed,” she said.
The accusations of being soft on crime seemed to irk Jackson especially because of her family background.
“I have law enforcement in my family,” she told Hawley.
About child pornography specifically, Jackson said she had seen the actual material and had been affected by it.
Hawley read from a court transcript where Jackson admonished an offender. Hawley said Jackson’s speech was “powerful” but didn’t match the sentence she imposed.
Jackson told the offender the material showed “unspeakable acts of sexual violence for the pleasure of the person who was filming and for the gratification of sick people everywhere,” Hawley read from the transcript.
Hawley closed his second round of questions by thanking Jackson for her candor and saying he’d enjoyed their exchanges, though they disagreed on the law.
New Jersey Democrat Cory Booker used his time not to question Jackson, but to defend her from the attacks launched by Hawley and Cruz.
Booker called the bombardment “a new low” that “set a dangerous precedent.” Jackson is “a mainstream judge,” he said. Most federal judges sentence child pornography convicts to less than federal guidelines call for, he said.
Booker received letters from victims’ groups that supported Jackson. The Fraternal Order of Police, the largest police union in the country, also endorsed her, he said.
He also spoke at length about the inspiring nature of the nomination of Jackson, who would be the first Black woman to sit on the Supreme Court. Relatives of Booker, who is Black, and strangers had expressed to him how excited they were for Jackson’s appointment.
“Nobody’s going to steal that joy,” Booker said.
Sen. John Kennedy, a Louisiana Republican, asked Jackson about the legal concept of substantive due process. The Supreme Court has used that concept to create new rights, he said, an example of policy-making from the bench.
Kennedy said he could imagine the court ruling, for example, that Americans had a right to assisted suicide or that transgender women athletes have a right to compete in women’s sports and questioned whether such rights shouldn’t be granted by Congress.
“I’m not saying I disagree with all the rights that the Supreme Court is creating,” Kennedy said. “But I don’t think we talk honestly enough about how those rights should be adjudicated.”
Jackson, who has emphasized throughout the hearings that judges only interpret laws and not write them, said there is a place for courts to protect rights, even those that are not specifically mentioned in the constitution or created by the elected branches of government.
“That’s the tension,” she said. “That although we have democracy as we do, and people vote … we also have a constitution that protects certain rights against the sort of majority will about those things.”
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