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GOP Focuses on Jackson’s Record on Sentencings: Court Update

March 23, 2022, 12:08 AM

Judge Ketanji Brown Jackson told the Senate Judiciary Committee considering her nomination to the Supreme Court that Roe v. Wade is settled law on abortion rights, declined to say whether she backs expanding the court and defended her sentencing in child-porn cases.

The statements came on Tuesday during the first of two days of questioning by lawmakers on the panel. Over several hours, Democrats highlighted Jackson’s qualifications and her experience as a judge and public defender. Republicans pressed her on representation of accused terrorists and a reversed ruling on immigration but also sought to air grievances about past treatment of conservative nominees.

The Judiciary hearing concludes on Thursday with testimony from outside legal experts. Democrats’ narrow control of the Senate means the 51-year-old judge’s confirmation as the first Black woman on the Supreme Court is all but assured, with a vote promised before a scheduled Senate break that begins April 9.

Key Developments:

  • Harvard Classmates Spar as Cruz Jabs Jackson at Senate Hearing
  • Jackson Promises ‘Neutral Posture’ as Approach to Deciding Cases
  • What to Know About Supreme Court Nominee Ketanji Brown Jackson
  • Jackson’s Path to Court Topples 233-Year Barrier for Black Women

GOP Focuses on Jackson’s Record on Sentencings (8:05 p.m.)

In one of the day’s sharpest exchanges, GOP Senator Tom Cotton attempted to paint Jackson as soft on crime, asking her in a rapid-fire series of questions whether average prison sentences are long enough for murderers, rapists, and those convicted for sexual assault.

When Jackson responded that it is Congress’s role to set criminal penalties, the Arkansas senator repeatedly cut her off as if the appellate court judge was a hostile witness at trial and then moved onto his next query.

“It’s important for people to be held accountable for criminal behavior,” Jackson said at one point. “It’s fundamental to the rule of law.”

Cotton later focused on one case when Jackson, then a district judge, sentenced a heroine dealer to a 20-year prison sentence but later reduced it under a “compassionate release” request. Jackson said she cut the sentence because Congress had passed a law after his sentencing that would have resulted in a lower sentence because he had a prior conviction that would no longer be taken into consideration.

Cotton said she “twisted the law” by using the compassionate release and suggested she was “sympathetic” to a “drug kingpin.” Jackson countered by saying not doing so would have resulted in an “unwarranted sentencing disparity” between the convicted man and others who benefited from the new law’s more lenient terms.

GOP Dwells on Jackson’s Child-Porn Sentencings (6:20 p.m.)

Senator Josh Hawley attacked Jackson’s judgment in child-porn cases, focusing on one in which she sentenced a defendant to three months in prison despite the prosecution and sentencing guidelines both calling for longer terms.

“I am questioning your discretion,” the Missouri Republican told the nominee. “That’s exactly what I’m doing.”

Jackson said she takes such cases “very seriously.” She pointed out that the government in the case called for a below-guidelines sentence, that many other judges sentence below guidelines, and that judges have to take other factors into account.

Hawley’s line of questioning was the latest in what has become one of the main Republican themes in Jackson’s hearings, underscoring an issue the party is emphasizing for the November congressional elections. Texas Senator Ted Cruz also questioned Jackson’s sentences in some child-porn cases.

Sentencing experts and lawyers across the political spectrum have noted in response to Republican criticisms that it is common for judges to depart from the guidelines in these cases. The guidelines are advisory, not mandatory. Judiciary Committee Chair Dick Durbin said Congress “doesn’t have clean hands in this conversation” because lawmakers haven’t addressed the situation in “15, 16 or 17 years and you aren’t the only one who faced this kind of a challenge with the cases before you.” -- Jordan Rubin

Ketanji Brown Jackson
Photographer: Al Drago/Bloomberg

Jackson Battles With Cruz on Critical Race Theory (3:25 p.m.)

Jackson rebuffed questions from Cruz about her views on a host of lightning rod cultural issues, including viewing history through a racial lens and the role of critical race theory in U.S. education.

“It doesn’t come up in my work as a judge,” Jackson said of critical race theory, or CRT. “It’s never something that I’ve studied or relied on, and it wouldn’t be something that I would rely on if I was on the Supreme Court.”

Critical race theory, or CRT, proposes that any analysis of U.S. laws and policy must take into account how race and racism has shaped attitudes and institutions. Opposition to the alleged influence of the theory in elementary and secondary education has become a rallying point for Republicans heading into the midterm elections. During the hearing, the Twitter account of the Republican National Committee sent out an animation linking Jackson to critical race theory.

Cruz, who was a year ahead of Jackson at Harvard Law School, also questioned Jackson’s contention that she didn’t know whether CRT is part of the curriculum in U.S. schools. He cited Georgetown Day School, a private school in Washington where she is on the board of trustees and which one of her children attends, saying its teachings are “filled and overflowing” with CRT. She said CRT is “an academic theory” taught in law schools and that as a board member she is not involved in the curriculum. -- Kelsey Butler

WATCH: Senator Ted Cruz challenged Supreme Court nominee Judge Ketanji Brown Jackson, about her thoughts on critical race theory during her confirmation hearing in Washington.
Source: Bloomberg

Jackson Says Supreme Court Has Adopted Originalism (2:25 p.m.)

Jackson said the Supreme Court has adopted originalism -- the conservative-backed method of interpreting the Constitution according to the meaning of its words when they were adopted. The court used that approach in 2008 when it said for the first time that the Second Amendment protects individual gun rights.

Mike Lee
Photographer: Ting Shen/Bloomberg

The court “very clearly has determined that in order to interpret provisions of the Constitution, we look to the time of the founding and we ascertain based on what the original public meaning of the words of the Constitution were at the time,” Jackson said. “Sometimes that yields a particular answer. Other times you may have to look to practices historically from that time.”

She made those comments in response to questions from Republican Senator Mike Lee of Utah about the Ninth Amendment, which says that people have rights that aren’t explicitly enumerated in the Constitution. Jackson said the court would have to interpret that amendment using the originalist approach. --Greg Stohr

Jackson Pressed on Liberal Advocacy for Nomination (12:22 p.m.)

Liberal advocacy groups mounted an organized effort to undermine a Supreme Court candidate who would’ve received support from Senate conservatives, Republican Senator Lindsey Graham said, referring to South Carolina federal Judge Michelle Childs to highlight Republican criticism of groups they believe aided Jackson’s nomination.

“Every group that wants to pack the court, that believes this court is a bunch of right wing nuts who are going to destroy America, that consider the Constitution trash, all wanted you picked,” Graham said. “That so many of these left wing radical groups that would destroy the laws we know it declared war on Michelle Childs and supported you is problematic for me.”

Graham pressed Jackson on whether she had communicated with these liberal groups. Jackson responded that she hadn’t. “It’s troublesome that people are or were doing things related to the nomination,” she said. -- Madi Alder

Jackson Says Roe V. Wade Is Settled Abortion Law (11:49 a.m.)

Judge Ketanji Brown Jackson talks about abortion rights.
Source: Bloomberg

Jackson said she believes abortion rights have been settled by the Supreme Court in the landmark cases Roe v. Wade and Planned Parenthood v. Casey in response to a question from Senator Dianne Feinstein. The California Democrat had similar questions to Justices Brett Kavanaugh and Amy Coney Barrett at their confirmation hearings.

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

Those rulings might no longer be the law of the land by the time Jackson joins the court. The justices are currently considering overturning Roe and Casey and eliminating the constitutional right to abortion in a case scheduled to be decided by late June or early July. -- Kelsey Butler

Graham Uses Queries to Revive Past Complaints (11:11 a.m.)

Graham revived long simmering grievances about how Democrats have treated some Republican judicial nominees through a series of pointed questions to Jackson about her religious views, including asking her if she could fairly judge a Catholic since she is Protestant.

Jackson said it is “very important to set aside one’s views” as a judge and noted also that there “is no religious test” in the U.S. Constitution.

Graham also asked Jackson to rate how important religion is to her on a scale of 1 to 10 and asked if she regularly attends church. But then he made clear he was asking to point out how uncomfortable it was for Justice Amy Coney Barrett, who is Catholic, to be subjected to questions from Democrats about her religious views during a 2017 hearing when she was a nominee for a Circuit Court post.

“Judge Barrett I thought was treated very, very poorly and I just wanted to get that out there,” Graham said.

Jackson Cites Criminal-Justice Work as an Asset (10:53 a.m.)

Jackson called criminal-justice experience an asset, saying it helped her develop the sense of the need to communicate directly with defendants.

Responding to questions from Senator Patrick Leahy, a Democrat from Vermont, Jackson said her public-defense experience didn’t change how she ruled as a judge but she understood that defendants can go through the system without understanding it.

As a judge, she said she wanted everyone in the courtroom to understand what was happening and to focus on the harms of the behavior at issue when sentencing defendants. -- Jordan Rubin

Jackson Defends Her Reversed Immigration Ruling (10:35 a.m.)

Jackson defended her reasoning in a U.S district court immigration ruling she wrote that was unanimously overturned by a three-judge appellate court panel in 2020 -- a decision conservative groups argue shows judicial overreach.

Jackson had blocked the Trump administration from subjecting more people to expedited deportation, saying there were “considerable downsides of adopting a policy that, in many respects, could significantly impact people’s everyday lives.” But the appeals court said Congress gave the Homeland Security secretary broad power to decide who is eligible for expedited removal.

Jackson said Tuesday her decision was based in part on a second statute that outlines how agencies can’t operate “capriciously,” and noted the case began with a “sudden shift” by DHS that allowed removals of anyone in the U.S. for up to two years -- instead of 14 days and within 100 miles of the border -- Laura Litvan.

Jackson Refuses to Discuss Supreme Court Expansion (10:20 a.m.)

Chuck Grassley
Photographer: Tom Williams/CQ Roll Call/Bloomberg

Jackson refused to weigh in on the debate over adding seats to the Supreme Court, an idea some progressives have pushed to counter a stream of Republican appointees that have shifted the court’s balance. Jackson said she would follow the example of Justice Amy Coney Barrett, who similarly declined to comment on the issue during her 2020 confirmation hearing.

“It is a policy question for Congress,” Jackson told Republican Senator Chuck Grassley of Iowa. “And I am particularly mindful of not speaking to policy issues because I am so committed to staying in my lane of the system.” -- Greg Stohr

Jackson Says Her Experience Shows Racial Progress (10:15 a.m.)

Jackson talked about her own experiences and upbringing when asked by Grassley, the committee’s top Republican, whether she still agreed with Martin Luther King Jr. comments on racial progress in the U.S. that she had quoted in a prior speech.

She said that in the speech at the University of Chicago Law School she noted that her parents were forced to attend racially segregated schools when they were growing up but by the time she was born in 1970 she was able to attend diverse schools.

“The fact that we had come that far was to me a testament to the hope and the promise of this country, the greatness of America,” she said. “That in one generation we could go from racially segregated schools in Florida to have me sitting here as the first Floridian ever to be nominated to the Supreme Court of the U.S., so yes, senator, that so that is my belief.”

Grassley said that , “It’s good that the country had an opportunity to hear what you just told us about your experience.” -- Kelsey Butler

Jackson Says Defense of Accused Central to Ideals (10:00 a.m.)

Jackson defended her work representing accused terrorists held at Guantanamo Bay, Cuba after the Sept. 11, 2001 attacks, telling senators that they were entitled to legal representation under the Constitution to ensure they were treated fairly.

“That’s what makes our system the best in the world,” she said in response to a question from Durbin. “That’s what makes us exemplary.”

Dick Durbin during the confirmation hearing in Washington, D.C.
Photographer: Julia Nikhinson/Bloomberg

Jackson said that cases were assigned to her during the time she served as a public defender, and that her work involved filing petitions on their behalf that made arguments about the circumstances of their cases.

“Federal public defenders don’t get to pick their clients,” Jackson added. -- Laura Litvan

Jackson Defends Sentencing in Child-Porn Cases (9:45 a.m.)

Jackson gave a strongly worded defense against accusations made by Hawley and other Republicans that as a federal trial judge she was lenient on people convicted of child pornography offenses.

Jackson said child pornography cases are “some of the most difficult cases” that a judge has to deal with.

She said she would tell defendants about a victim who wrote that she was afraid to leave her house because she thought everyone she encountered had seen pictures of her on the internet.

“I tell that story to every child porn defendant as a part of my sentencings so that they understand what they have done,” Jackson said. “I say to them that there’s only a market for this kind of material because there are lookers, that you are contributing to child sex abuse. And then I impose a significant sentence.” -- Greg Stohr

Jackson Says She Places Emphasis on Impartiality (9:25 a.m.)

In response to opening questions from Durbin, Jackson outlined her judicial philosophy, saying that in working as a federal judge for nine years she follows a “methodology” to evaluate cases and works to clear her mind of “any preconceived notions.”

She said she examines arguments on both sides and the factual record before applying the law and relevant precedents and is conscious of limits on judicial authority.

“”I am trying in every case to stay in my lane,” she said, adding that “the adherence to text is a constraint on my authority.” -- Laura Litvan

GOP Plots Questioning for Jackson on Sentencing

Republicans on the Senate Judiciary Committee foreshadowed plans to closely question Jackson about her views on crime by scrutinizing cases where, as a district judge, she sentenced defendants convicted of child pornography possession to what they contend were prison terms below the sentencing guidelines and what prosecutors sought.

Senator Josh Hawley of Missouri has been leading the charge on that line of attack, which sentencing experts and lawyers, including a prominent conservative, have labeled misleading or without merit. Several other Republican senators, including Marsha Blackburn of Tennessee, also pursued the topic in their opening statements on Monday.

The issue dovetails with the law-and-order message Republicans are rolling out for the midterm elections that will decide control of the House and Senate. Several other areas designed to appeal to the GOP base also are likely to come up during questioning. Senator Ted Cruz, a Texas Republican, said it was “fair game” to question Jackson about abortion, gun rights and school choice. -- Greg Stohr and Laura Litvan

--With assistance from John Crawley, Kelsey Butler and Jordan Rubin.

To contact Bloomberg News staff for this story:
Laura Litvan in Washington at llitvan@bloomberg.net;
Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story:
Joe Sobczyk at jsobczyk@bloomberg.net

Elizabeth Wasserman

© 2022 Bloomberg L.P. All rights reserved. Used with permission.