2 years ago
Supreme Court nominee Ketanji Brown Jackson faced round after round of Republican attacks on Wednesday in questioning that may create video clips for potential Republican presidential candidates but didn’t shed much new light on her judicial record.
Jackson’s confidence seemed to grow over the course of her second day of questioning, with the nominee sometimes pushing back against a handful of GOP senators who read out graphic details of child pornography cases she’d handled as a judge, accusing her of being too lenient on the offenders. Senate Democrats reiterated that Jackson’s sentencing record was in line with that of other federal judges appointed by both Republicans and Democrats.
At the end of a 10-hour day, Senate Judiciary Chair Dick Durbin (D-Ill.) decried some of his Republican colleagues for being, as he put it, “just vicious in their attacks.”
“There was a promise that they’d treat her with respect. Obviously, a couple of my colleagues didn’t get the memo,” Durbin said.
With the first vote on Jackson’s nomination roughly 10 days away, the confirmation hearings probably did not change minds on either side of the Judiciary Committee dais.
Here’s our look at five key themes and moments from Jackson’s final day of grilling by senators:
Jackson’s “West Wing” moment
What “The West Wing” did for the White House, Jackson may have done on Wednesday for public defenders and work on behalf of unpopular legal clients.
Liberal legal groups like Demand Justice have pushed the Biden White House to choose judicial nominees with public-defender and public-interest law backgrounds in the hope that such individuals will be more sympathetic on the bench to criminal defendants and to left-leaning causes.
However, Jackson did something on Wednesday that went above and beyond that goal: arguing in a high-profile forum that her work for criminal defendants and even Guantánamo prisoners was a noble calling on par with serving in the military.
“I worked to protect our country. My brother worked on the front lines, and it was all because public service is important to us,” the nominee said.
Near the beginning of the daylong session, Jackson offered a soliloquy about why those who represented what many Republicans on the panel called “terrorists” were actually making Americans more secure.
“To defend our country and its values,” she declared, “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, and so 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.”
Later, Sen. Tom Cotton (R-Ark.) pressed Jackson on whether she’d like to see everyone at Guantánamo Bay, Cuba, released. That prompted another muscular rejoinder from the nominee.
“Senator, America would be less safe if we don't have terrorists out running around attacking this country, absolutely,” she said. “America would also be more safe in a situation in which all of our constitutional rights are protected. The Constitution is not suspended in times of crisis. … Criminal defense lawyers make sure that in times of crisis, the government is following the rules.”
Does a judge — or a justice — need a philosophy?
It’s the question that has launched a thousand news stories and analysis pieces about Jackson and a slew of other people named to the high court: What is the nominee’s judicial philosophy?
During the two days of grilling, Republicans struggled to get a clear answer from Jackson to that question. Sometimes she seemed to say she didn’t have one. At other times, she tried to shift the question to something more to her liking.
“I do have a philosophy. The philosophy is my methodology. It is a philosophy that I have developed from practice,” Jackson said, before giving a fairly mundane description of what most judges do: read the brief, listen to the arguments from both sides, look at the precedents and make a decision.
That kind of answer didn’t seem to satisfy many Republicans, who were looking for Jackson to declare herself an originalist, a textualist or, perhaps, like her mentor Justice Stephen Breyer, a living constitutionalist. She eschewed all those labels and at one point suggested they might be better suited to judges who come from academia.
“You wouldn’t claim any of those philosophies for yourself,” Sen. Ben Sasse (R-Neb.) said. “Judicial philosophy of some kind is necessarily an input into your methodology to every judge on the court. It is important for us to unpack that. … I wish I’d made more progress.”
One Democrat declared himself unperturbed by Jackson’s lack of a discernible judicial philosophy.
“Doesn't bother me a bit,” said Sen. Sheldon Whitehouse of Rhode Island, a leading critic of “dark money” efforts to move the courts to the right. “It bothers me, the expectation that a nominee to the Supreme Court should have a judicial philosophy. … A judicial philosophy can be a screen for a predisposition that judges, frankly, should not have. … I think you have to have integrity, a judicial temperament, but a philosophy? Where does that come from?”
Attacks on Jackson rile up allies
The intense attacks some Republicans leveled at Jackson left some of her backers complaining that more should have been done to ensure she was treated with respect.
“These confirmation hearings are a test case for us,” tweeted Aimee Allision of She The People, a group for Democrats of color. “Black women and women of color are watching the attacks and disrespect and the relative quiet of the Dems in response. Are Democrats ready and willing to fight for us, for our representation, for our issues?”
A confrontational series of questions for Jackson from Sen. Ted Cruz (R-Texas) that ended up in an argument with Judiciary Committee Chairman Dick Durbin (D-Ill.) drew the ire of the NAACP.
“It was outrageous. Judge Jackson deserves so much better than this,” the civil rights group wrote on Twitter.
As the hearings wore on, Democrats became more critical of their GOP colleagues.
“You faced insults here that are shocking to me — well, actually, not shocking,” Sen. Cory Booker (D-N.J.) declared.
As the second and final day of questioning concluded, Durbin said he thought most of his Republican colleagues had lived up to a promise of “fair and respectful” questioning, but he said some GOP senators had gone too far.
“There were a few obvious, glaring exceptions and I am sorry for that,” the Illinois Democrat told Jackson. “Your patience, dignity and grace in the face of what was, frankly, some offensive treatment is a real testament to your judicial temperament.”
Cruz’s document demand irks Durbin
A Supreme Court confirmation wouldn’t be a Supreme Court confirmation without a document fight, and Republicans obliged on Wednesday. GOP senators reacted with outrage after learning that their Democratic colleagues and the White House had access to details of probation office recommendations for some defendants Jackson sentenced.
Durbin sought to defuse the fight by giving Republicans a chart showing the data the White House got from Jackson over the weekend, but GOP senators said the numbers weren’t enough and demanded the full probation office reports on each of those cases.
Cruz, along with nine other Republicans, sent a letter to Durbin requesting that he adjourn the nomination hearing until he produced “all documents and information that [he had] regarding sentencing and probation recommendations in Judge Jackson’s criminal cases that have not been shared with Republican members of the Committee.”
While the bottom-line recommendations are usually public, the probation documents are kept under seal in court files and Durbin contended that procuring those records could wind up “endangering the lives of innocent people”
“I’m sorry, that’s a bridge too far for me. … It’s gone way too far way too far,” Durbin said, contending that GOP members were on a fishing expedition.
“The notion of making those pre-sentencing reports available for this political environment and be available for public consumption is reprehensible and dangerous,” he told reporters after the hearing.
One Judiciary Committee Republican did not sign on to Cruz’s letter: Sen. Ben Sasse (R-Neb.). James Wegmann, a spokesperson for Sasse, said Cruz raised ”an important process issue on document production.” He added that Sasse “said at the outset of this hearing, he’s going to continue to dive into Judge Jackson’s judicial philosophy because, as an originalist, he believes judicial philosophy is the central issue of this nomination.”
Senatorial cursing
As emotions ran high at Jackson’s hearing, senators unleashed a fusillade of invective that at times veered into outright profanity.
Sen. Lindsey Graham (R-S.C.) got worked up at Tuesday’s session over what he said were legal arguments Jackson advanced questioning the U.S. government’s right to detain terrorism suspects as prisoners under the law of war.
“Look at the frigging Afghan government! It’s made up of former detainees,” Graham said, just after he declared that he’d like to see the nearly 40 men still at Guantánamo held forever. “I hope they all die in jail if they will kill Americans.”
At one point, when Graham accused Jackson of being too light on child pornography sentencing, he declared that the best way to deter individuals from watching child porn on a computer was to “put their ass in jail, not supervise their computer usage."
Sen. Sheldon Whitehouse (D-R.I.) — who gets very hot under the collar when discussing what he views as the capture of the Supreme Court by moneyed interests on the right - also cursed mildly as he observed that former Sen. Orrin Hatch noted that then-President Donald Trump had been accused of outsourcing his judicial selection process to the Federalist Society.
“I say: Damn right!” Whitehouse exclaimed.
On Wednesday, Graham got wound up again as he railed against Jackson’s sentences for child pornography defendants. “We are trying to get people to stop this crap!” he shouted.
Sen. Jon Tester (D-Mont.) isn’t on the Judiciary Committee, but he also uttered some choice terms when asked on Wednesday about the efforts by Sen. Josh Hawley (R-Mo.) to argue that Jackson was too kind to “child predators.”
“I think it’s bullshit. Look at the source,” Tester told POLITICO. “The guy’s running for president and he says outlandish things.”
And as Sasse complained that many of his colleagues were indulging faux outrage, he managed to use some colorful language himself.
“The jackassery we often see around here is partly because of people mugging for short-term camera opportunities,” he declared while advocating for the Supreme Court to keep its argument sessions off TV.”
Burgess Everett contributed to this report.
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