GOP senators attack and interrupt in final day of questioning U.S. Supreme Court nominee
U.S. Supreme Court nominee Judge Ketanji Brown Jackson listens to a question from Sen. Lindsey Graham, R-South Carolina, during a Senate Judiciary Committee confirmation hearing March 23, 2022. (Senate Judiciary Committee livestream screen capture).
WASHINGTON — In the third day of hearings Wednesday on the nomination of Ketanji Brown Jackson to the U.S. Supreme Court, several Republicans on the U.S. Senate Judiciary Committee interrogated her about sentences she handed down for child pornography offenses, disagreeing vehemently with her judicial decisions.
Republicans grilled her with questions she had already answered about seven cases — out of hundreds she handled as a federal district court judge — that dealt with child pornography, in an attempt to paint her as soft on offenders convicted of heinous charges.
Jackson in response to Sens. Lindsey Graham, Ted Cruz and Josh Hawley defended her record — despite numerous interruptions from the senators — and attempted to explain the complexity of federal sentencing, as she had on Tuesday.
She objected to Hawley and other Republicans’ focus on sentencing in such a small number of cases, repeating throughout the day that “no one case can stand in for a judge’s entire record.”
Democrats on the 22-member committee stressed her qualifications and her high ratings from law enforcement groups like the Fraternal Order of Police. Sen. Jon Ossoff, a Georgia Democrat, invited Jackson to talk about her brother, who is a law enforcement officer, as well as her two uncles who served in law enforcement.
“We looked up to them, and we understood through their service what it meant to give back to your community,” Jackson said of her uncles.
New Jersey Democrat Cory Booker used his time not to question Jackson, but to defend her from the attacks launched by Republicans.
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 offenders to less than federal guidelines call for, he said.
Jackson, if confirmed, would be the first Black woman and first former public defender to serve on the Supreme Court. She was born in Washington, D.C., but grew up in Florida and would be the first Floridian to sit on the high court. She graduated from Miami Palmetto Senior High School before going on to Harvard College and Harvard Law School.
It is not yet clear if any Republicans in the evenly divided Senate will back her nomination. If there’s a tie 50-50 floor vote on the confirmation, it would be broken by Vice President Kamala Harris.
Time and again Republicans on Wednesday returned to questions about child pornography. Hawley, a Missouri Republican, asked Jackson if she regretted giving sentences that he believed were not long enough.
“What I regret is that in a 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 Hawley cut her off.
“Do you regret your cases? I don’t understand,” Hawley said.
Cruz, a Texas Republican, accused her and the chair of the Senate Judiciary Committee, Dick Durbin, of “filibustering” her responses.
Throughout Jackson’s exchange with Cruz, Durbin asked him to allow Jackson to respond to his questions instead of interrupting her.
“You don’t want her to answer that question?” Cruz said, later accusing Durbin of trying to hide her response from “the American people.”
“You wouldn’t let her answer anyways,” Durbin said.
Durbin also had to repeatedly intervene with Graham, a South Carolina Republican, to ask that he allow Jackson to answer questions instead of interrupting her.
Graham asked her questions about Justice Brett Kavanaugh and if she would like to be treated the way he was during his confirmation hearing, and if she thought that treatment would be fair. Accusations of sexual assault were made against Kavanaugh in his extremely contentious confirmation hearing in 2018.
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.”
Graham previously voted to confirm Jackson in her current role as a judge on the D.C. Circuit Court of Appeals.
Cruz asked about how she would approach a role as an associate justice on the Supreme Court and asked her to give a definition of a woman, the same question GOP Sen. Marsha Blackburn of Tennessee asked the previous day.
“If I can change my gender, if I can be a woman and then an hour later if I decide I’m not a woman anymore, I guess I would lose Article III standing?” Cruz asked. Article III allows someone who has a personal stake in an outcome to bring a suit in a federal court.
He continued, “Tell me, does that same principle apply to other protected characteristics? For example, I’m a Hispanic man, could I decide I was an Asian man, what I had the ability to be an Asian man, and challenge Harvard’s discrimination because I made that decision?”
“Senator, I’m not able to answer your question,” Jackson said. “You’re asking me about hypotheticals and –”
Cruz cut her off. He said that she was the only Supreme Court Justice nominee to not be able to give a definition of what it meant to be a “woman” — though no other nominee has been asked that question during their confirmation hearings.
The Harvard affirmative action case that Cruz mentioned is set to be heard by the Supreme Court later this year. Jackson said during Wednesday’s hearing that if she was confirmed, she would recuse herself because it involves her alma mater.
Republicans also pressed her again on her opinion of expanding the court, a question she said Tuesday she could not answer because the decision to add more justices to the Supreme Court would be made by Congress, not the judges.
Jackson again said that she felt she should not answer that topic, as it was currently being discussed, and it would be inappropriate for her to give an answer, especially when that decision was up to Congress.
Supreme Court Justice Amy Coney Barrett was asked her view on “court packing” in her 2020 confirmation hearing, and she also declined to answer the question, saying that the size of the Supreme Court is up to Congress.
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After Hawley finished wrapping up his questions, Cruz interrupted Democratic Sen. Mazie Hirono, a Democrat, when it was her turn for questions, saying he wanted to enter a letter into the public record and he wanted to be recognized.
The letter was signed by 10 GOP senators on the committee, every Republican except for Sen. Ben Sasse of Nebraska, asking they be allowed to view pre-sentencing reports for Jackson’s cases involving child pornography.
Sen. Patrick Leahy, a Vermont Democrat, told Cruz to follow the rules and let Hirono ask her questions.
“I know the junior senator from Texas likes to get on TV,” Leahy said.
Hirono asked Jackson about how her time in public school helped shape her. Jackson, if confirmed, would be one of four justices who attended public school on the court.
Durbin later pushed back against Republicans’ request for pre-sentencing information on the cases, as those documents could contain sensitive information such as a victim’s name.
“I don’t believe that this information is going to change anyone’s vote,” he said.
Jackson will be done testifying after Wednesday. The confirmation hearings will wrap up on Thursday, when the Judiciary Committee listens to testimony from the American Bar Association and other witnesses, including U.S. Rep. Joyce Beatty, an Ohio Democrat and chair of the Congressional Black Caucus.
Senate Majority Leader Chuck Schumer has said he hopes to have a final confirmation vote by Easter, or April 17. If Jackson is confirmed, she would join the Supreme Court later this summer.
“Yesterday, Judge Ketanji Brown Jackson offered a 13-hour master class of why she deserves to be the 116th justice of the United States Supreme Court. She was simply impressive,” Schumer, who also joined the hearing audience at one point, said on the Senate floor on Wednesday.
“It was clear to anyone watching Judge Jackson’s brilliant legal mind that it was running in high gear; she remained measured and poised and thoughtful as she worked through yesterday’s grueling series of questions.”
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