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Jackson Gets ABA Backup as Panel Rebuts Soft-on-Crime Claims (3)

March 24, 2022, 2:52 PMUpdated: March 25, 2022, 1:35 AM

Members of an American Bar Association panel that gave Ketanji Brown Jackson its highest professional rating for the Supreme Court said reviewers found no evidence she’s soft on crime as Republicans charged at her confirmation hearings.

“Notably, no judge, defense counsel, or prosecutor expressed any concern in this regard, and they uniformly rejected any accusations of bias,” D. Jean Veta, a co-lead evaluator on Jackson’s Well Qualified review and senior counsel with Covington & Burling, told the Senate Judiciary Committee on Thursday.

The testimony by members of the ABA Standing Committee on the Federal Judiciary came on the fourth and final day of Jackson’s confirmation hearings to become the first Black woman on the Supreme Court when lawmakers heard from outside witnesses. Jackson, currently an appeals court judge, wasn’t present.

Jackson, 51, defended herself in tense questioning on Tuesday and Wednesday from Republicans who alleged that she was lenient in sentencing defendants convicted of possession of child pornography and other crimes while a trial judge in Washington from 2013-2021.

First-Hand Knowledge

Standing committee reviewers interviewed 250 judges and lawyers who they said had first-hand knowledge of how Jackson, a former public defender, conducted herself on the bench. The ratings noted her integrity, even-handed nature, and exceptional competence.

The reviewers said they found no evidence of bias toward defendants or the prosecution, including her handling of child pornography cases. A number of experts have labeled claims that she favored defendants in certain cases—pursued aggressively by Sens. Josh Hawley (R-Mo.), Ted Cruz (R-Texas), and others at the hearings— as misleading.

There was no immediate response from Hawley. A Cruz spokesperson said the ABA committee didn’t address or specify whether it asked about the core complaint that when Jackson had discretion in child pornography possession cases, sentences fell “below what the prosecution asked for and what the sentencing guidelines called for, and in some cases, even what the probation office asked for.”

Senate Minority Leader Mitch McConnell (R-Ky.) said on Thursday in floor remarks that he wouldn’t support Jackson’s nomination, in part echoing comments of other Republicans that he was not satisfied with Jackson’s responses to questions on her judicial record.

In defending herself on Tuesday and Wednesday, Jackson called child pornography “some of the most difficult cases” judges can face. She repeatedly said that she considered a range of factors when sentencing a defendant convicted of such offenses and imposed lengthy term of supervision once a prison term is completed.

Big Law Representation

Standing Committee members include attorneys from Big Law and other firms covering the federal circuits as well as other advisers. Its chair, Ann Claire Williams of Jones Day is a retired federal judge first appointed to the bench by Ronald Reagan.

While the committee is appointed by the ABA, it operates independently from the national lawyers’ group. It doesn’t recommend judges, but says it rates qualifications to serve on the federal bench. In addition to interviews, members said it reviewed writings and publicly available records involving Jackson’s cases, including those on sentencing.

A number of Republicans have long questioned ABA judicial reviews as biased, particularly after several of Trump-era appointees received unqualified ratings.

Sen. John Cornyn (R-Texas) said at Thursday’s hearing that it appeared in past Supreme Court nominations that the ABA had “taken sides” which raises concerns about whether such testimony should be taken at face value or whether ”you’re a combatant” in nominations.

Williams said the standing committee had no communications with the ABA about its work. “It is designed so that we can do it separately.”

Public Records

On sentencing, lead ratings evaluator Joseph Drayton of Cooley LLP said reviewers inspected publicly available records in a sampling of Jackson’s cases that included those involving child pornography and sex offenses. He said they reviewed prosecution and defense recommendations and noted in some instances that Jackson consulted sentencing statistics of other judges.

“We looked the record and how she came out and it didn’t appear as though she favored the prosecutor nor the defense in such cases,” Drayton said.

Williams said the panel did not review pre-sentence reports because they are “highly confidential.”

“We did as much as we could,” Williams said, noting that the committee believed it had a sufficient information to draw conclusions.

Cornyn, a former judge, didn’t criticize the findings. But he did ask how they could then be sure of the findings if they couldn’t access all records on sentencing and other matters.

Williams and Drayton said attorneys were also interviewed. “We did query, we pressed hard, we asked questions of these prosecutors and these defense attorneys,” he said, noting there was no evidence of bias.

Republicans on Wednesday made pre-sentence reports a focus of their claims about Jackson’s sentencing record on child pornography cases, requesting that the documents be turned over for review by the Judiciary Committee.

Judiciary Chair Dick Durbin (D-Ill.) pushed back on that request, saying the release of the documents could cause additional harm to the victims.

The Judiciary Committee plans to consider Jackson’s nomination at a meeting on Monday. Durbin said he expects the committee to vote on sending her nomination to the full Senate April 4. Democrats who control the Senate hope to confirm her shortly after that.

(Updates with Cruz spokesperson statement and more details from testimony, McConnell.)

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Tom P. Taylor at ttaylor@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com