Judge Ketanji Brown Jackson, the first Black woman nominated to the U.S. Supreme Court, faces up to 11 hours of grilling Tuesday on Day 2 of her four-day confirmation hearings before the Senate Judiciary Committee.
Jackson, 51, who currently sits on the nation’s second most powerful court, the U.S. Court of Appeals for the D.C. Circuit, is being questioned by each of the committee’s 11 Republicans and 11 Democrats over two days. On Thursday, senators can ask questions of the American Bar Association and other outside witnesses.
While Democrats have the votes to confirm President Joe Biden’s first Supreme Court nominee on their own and hope to by the middle of April, the hearings could prove critical to the White House goal of securing at least some Republican support and shoring up the court’s credibility.
ABC News Live will air gavel-to-gavel coverage of the hearings all week.
Sen. Josh Hawley, R-Mo., spent his entire 30 minutes of questioning to again accuse Jackson of giving short sentences to child porn offenders, saying he questioned her judgment. Hawley brought up a specific case involving an 18-year-old defendant who Jackson sentenced to three months in federal prison. The government had requested 24 months in prison.
“I’m having a hard time wrapping my head around it,” Hawley said. “We’re talking about 8-year-olds, 9-year-olds, 11-year-olds, and 12-year-olds [as victims]. He’s [the defendant] got images that added up to over 600 images, gobs of video footage … If it’s not heinous or egregious, how would you describe it?”
Jackson responded, “The evidence that you are pointing to … is heinous. It is egregious. What a judge has to do is determine how to sentence defendants proportionately, consistent with the elements that the statutes include with the requirements that Congress has set forward. Unwarranted sentencing disparities is something that the Sentencing Commission has been focused on for a long time in regard to child pornography offenses.”
“All of the offenses are horrible. All of the offenses are egregious,” she continued. “But the guidelines — as you pointed out — are being departed from even with respect to the government’s recommendation. The government in this case and in others has asked for a sentence that is substantially less than the guideline penalty. And so what I was discussing was that phenomenon, that the guidelines in this area are not doing the work of differentiating defendants as the government itself indicated in this very case. And so that’s what I was talking about, but I want to assure you, Senator, that I take these cases very seriously.”
But she added: “It’s not just about how much time a person spends in prison — it’s about understanding the harm of this behavior. It’s about all of the other kinds of restraints that sex offenders are ordered, rightly, to live under at the end of the day. The sentences in these cases include not only prison time, but restraints on computer use, sometimes for decades. Restraints on ability to go near children, sometimes for decades. All of these things judges consider in order to effect what Congress has required — which is a sentence that’s sufficient but not greater than necessary to promote the purposes of punishment.”
Sen. Richard Blumenthal, D-Conn., told Jackson, “As I look at your parents and your husband and your daughters, what I see is America. And the best of America. So I think we should all feel that excitement and pride in this moment.”
“You will make the court look more like America, but also think more like America,” Blumenthal continued. “You will provide a very important perspective — indeed, a unique perspective — that the court needs more than ever at this moment in its history.”
He also commended Jackson’s “emotional intelligence.”
“There are a lot of people who are book smart — there are not as many people who are person smart, and you are both. That kind of emotional intelligence is what our courts need,” he said.
Jackson responded: “I am humbled and honored to have the opportunity … I stand on the shoulders of generations past who never had anything close to this opportunity, who were the first and the only in a lot of different fields. My parents, as I said, were the first in their families to have the chance to go to college. I’ve been the first and the only in certain aspects of my life, so I would say that I agree with you that this is a moment that all Americans should be proud.”
Sen. Ben Sasse, R-Neb., asked Jackson which justice she most admires and most aligns herself with.
Jackson responded that she doesn’t have a justice she’s molded herself after, saying instead, “What I have is a record.”
“I have 570-plus cases in which I have employed the methodology that I described and that shows people how I analyze cases. I, in every case, am proceeding neutrally,” she said.
“Because of the way in which I do things, I am reluctant to establish or to adopt a particular label, because the idea of how you interpret is just one part of a judge’s entire responsibility,” she said.
“I am looking at the facts in a case, and my experience as a trial judge helps me to assess the facts” from different perspectives, she said.
Jackson continued, “I believe that the Constitution is fixed in its meaning. I believe that it’s appropriate to look at the original intents, original public meaning of the words when one is trying to assess, because, again, that’s a limitation on my authority to import my own policy views. But there are times when the meaning, unreasonable searches and seizures, due process, looking at those words are not enough to tell you what they actually mean. You look at them in the context of history. You look at the structure of the Constitution. You look at the circumstances that you’re dealing with in comparison to what those words meant at the time that they were adopted. And you look at precedents that are related to this topic.”
Following a contentious round of questioning from Republican Sen. Ted Cruz, Sen. Chris Coons, D-Del., repeated for the record that Judge Jackson has never referenced “The 1619 Project” or “critical race theory” in her work as a judge, to which she agreed.
Coons went on to call out previous Republicans and those still to come this afternoon, such as Sens. Josh Hawley, R-Mo., and Marsha Blackburn, R-Tenn., who have distorted circumstances around her federal sentences of child pornography offenders and have suggested she was too lenient on criminals.
“The National Review, a conservative publication, has characterized that view of you as a smear that appears meritless to the point of demagoguery and characterizes your approach in sentencing in these cases as mainstream and correct,” Coons noted.
The Delaware senator also said that in 70% of child pornography possession sentences nationwide, “downward departures from the federal guidelines are the norm” and allowed Jackson, again, the chance to bring up her ties to law enforcement and the seriousness with which she handles sex crimes, especially against children.
“As a mother, these cases involving sex crimes against children are harrowing,” she said. “These are the cases that wake you up at night because you’re seeing the worst of humanity.”