US Supreme Court nominee Ketanji Brown Jackson, in the first day of questioning from senators, forcefully defended herself from accusations from at least two Republicans that she handed out lenient sentences to defendants convicted of possessing child pornography.
MissouriSen. Josh Hawley on Monday said in his opening statement that his research showed that she had a pattern of issuing lower sentences in child pornography cases, repeating comments posted to Twitter last week.
Democratic judicial committee chair Sen. Dick Durbin of Illinois on Tuesday gave Jackson a chance to express what was going through his mind during the previous day’s accusations of leniency.
“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 responded. “These are some of the most difficult cases judges have to do deal with.”
Jackson said that during sentencing for offenders who download child porn images, she confronts them about the impact on victims.
“I say to them there is only a market for this kind of material because there are ‘lookers,’ that they are contributing to child sex abuse,” Jackson said.
Hawley and Texas Sen. Ted Cruz on Tuesday highlighted the maximum penalties for each offense in cases Jackson adjudicated, but not always the prosecutor or defense sentencing proposals. Federal judges routinely impose penalties under the guidelines — which are only advisory — in cases involving defendants who do not themselves produce child pornography, according to the US Sentencing Commission.
Jackson’s “sentencing practices for child pornography cases are squarely within the mainstream of federal district court judges nationally,” a group of sentencing experts said in a March 20 letter to the committee.
Delaware Democratic Sen. Chris Coons accused Republicans of cherry-picking the nominee’s case history, pointing to three times in which Jackson ruled in accordance with prosecutor sentencing requests.
Republicans also tried to tie Jackson to their concerns over so-called critical race theory (CRT) in education, including at a private school where she serves as a board member, but she said CRT had never once been up for discussion in cases she’s adjudicated .
Defends representing Guantanamo detainees
Republicans are trying to use her nomination to brand Democrats as soft on crime, an emerging theme in midterm election campaigns.
Jackson has said she has respect for the role of law enforcement, pointing to the fact her brother and two uncles have served as police officers, while her nomination has the backing of the National Fraternal Order of Police.
“I know what it’s like to have loved ones who go off to protect and to serve and the fear of not knowing whether or not they’re going to come home again because of crime in the community,” she said. “Those are not abstract concepts or political slogans to me.”
Jackson also spoke about her work from 2005 to 2007 as a court-appointed lawyer to represent criminal defendants who could not afford counsel, including some accused of terrorism offenses detained at Guantanamo Bay.
She told the panel that the Sept. 11, 2001, attacks on the United States were tragic but that “we couldn’t let the terrorists win by changing who we were fundamentally” when it comes to every defendant’s right to counsel.
Representation matters, Jackson says
Jackson, President Joe Biden’s nominee to replace Justice Stephen Breyer, would be the only Black female justice in the court’s 233-year history if confirmed. She would be the 116th justice in history, but just the third Black justice and sixth female justice overall.
She said she has received messages from girls around the country.
“We want, I think, as a country for everyone to believe that they can do things like sit on the Supreme Court,” Jackson told California Democratic Sen. Diane Feinstein. “And so having meaningful numbers of women and people of colour, I think, matters. I also think it supports public confidence in the judiciary when you have different people because we have such a diverse society.”
However, Republican Sen. Lindsey Graham bemoaned what he saw as attacks by liberal special interest groups directed at another Black candidate for the top court, Michelle Childs, who is from his state of South Carolina.
Graham on Monday said Jackson’s nomination was “sponsored by the most radical elements of the Democratic Party,” but Coons pointed to a Jackson ruling at the height of the heated 2016 presidential campaign in which she ruled in favor of the Republican National Committee in a case concerning Democratic candidate Hillary Clinton’s past emails.
Republican support in question
Jackson has been confirmed for other judicial roles before the same committee over the years, including after Biden chose her for the US Court of Appeals in Washington last year. She received three Republican votes then — from Graham, Susan Collins of Maine and Lisa Murkowski of Alaska — but no Republicans have yet announced an intention to vote in her favor this time.
This confirmation hearing follows explosive 2018 hearings for Brett Kavanaugh, who was accused of sexual misconduct in his past, and a sometimes contentious session two years later when Republican senators fast-tracked Amy Coney Barrett’s hearings after the death of Ruth Bader Ginsburg so that they could be completed before the presidential election.
A Jackson confirmation would not change the court’s 6-3 conservative majority, led by Chief Justice John Roberts.
But the final Senate vote count is expected to be razor-thin, reflecting the polarized nature of the two American parties. In contrast, Breyer was confirmed with an 87-9 vote in his favor in 1994, while conservative Antonin Scalia in 1986 did not receive a single vote in opposition to his nomination.
Democratic leaders are hoping for some Republican support, but in the case of an even vote count, Vice-President Kamala Harris can cast a tie-breaking vote.