5 takeaways from Ketanji Brown Jackson's Supreme Court hearing
WASHINGTON — Judge Ketanji Brown Jackson on Wednesday evening emerged from two grueling days of confirmation hearings with scant Republican support but solid Democratic backing that’s expected to put her on the U.S. Supreme Court.
Jackson, 51, the first Black woman and public defender chosen to be a justice, faced a Republican grilling that required her to explain her legal defense of Guantanamo detainees, her views on critical race theory and her sentencing decisions in child pornography and drug cases.
And Republicans made the two days of questioning rougher than many observers had anticipated. “This is a tough place,” Sen. Dianne Feinstein (D-Calif.) told her.
Some Republicans raised their voices and expressed anger, notably Sen. Lindsey Graham (R-S.C.), who stalked out of the hearing after a heated exchange.
Jackson answered one big question: If confirmed, she said she won’t hear a case in the next term about the affirmative action program at Harvard, where she sits on the board of governors.
But she ducked another: She declined to say if she opposes a proposal to expand the number of justices on the Supreme Court.
Here are five takeaways from the hearings.
An elusive philosophy
Senators often try to guess how nominees would rule once on the court by asking them about their judicial philosophy. But Jackson said she had no judicial philosophy, only a judicial methodology.
“I have developed a methodology that I use in order to ensure that I am ruling impartially and that I am adhering to the limits on my judicial authority,” she said.
Yet Jackson also echoed an approach used by conservative justices: “I believe that the Constitution is fixed in its meaning. I believe that it's appropriate to look at the original intent, original public meaning, of the words.”
Democrats expressed no alarm, but some conservatives expressed surprise — and disbelief.
Senators had different reactions to her lack of a philosophy.
Graham and Sens. Ted Cruz (R-Tex.) and Josh Hawley (R-Mo.) called her an “activist.”
Sens. Sheldon Whitehouse (D-R.I.), Chris Coons (D-Del.) and Mazie Hirono (D-Hawaii) said philosophy doesn’t matter.
Sens. Mike Lee (R-Utah) and Ben Sasse (R-Neb.) seemed unsure of what to think.
Feinstein said she’d been waiting for 15 hours for an answer on what kind of justice she would be — so she asked her.
Jackson answered. “I've been saying stay in my lane, to not exert my authority beyond what the Constitution requires when I'm interpreting and applying the law.”
Soft on child porn crimes?
Hawley led Republicans in the most provocative attack on Jackson’s 8-year record and 578 opinions as a D.C. Federal District Court judge by criticizing her for giving shorter sentences than guidelines and laws recommended in seven child pornography cases.
She defended her use of several factors, including probation reports, and said the sentences fell within the usual range nationally. Committee Chairman Dick Durbin (D-Ill.) said 70% of child porn sentences nationally are lower than the guidelines.
Republicans repeatedly pointed to a 2013 case in which Jackson sentenced a 19-year-old in a plea agreement for two dozen child porn images on his laptop to serve three months, though prosecutors sought 24 months and guidelines recommended 97 to 121 months.
“All of the offenses are horrible,” she said, but added that even the government “in this case and in others has asked for a sentence that is substantially less than the guideline penalty.”
At least one Republican shrugged. Sen. Mitt Romney (R-Utah) told the Washington Post: “There is no ‘there’ there.”
Cruz, a Harvard Law classmate of Jackson’s, charged that she supports critical race theory, a controversial concept that racism is embedded in legal systems and policies.
Jackson, he said, mentioned Nickole Hannah-Jones’ 1619 Project, which emphasizes the theory. Cruz then attacked books on critical race theory in the curriculum of Georgetown Day School, a private school where Jackson's daughter goes and where she sits on the board.
“One portion of the book says babies are taught to be racist or anti-racist," Cruz said.
Jackson replied that she didn’t endorse the 1619 Project and that the school board has no control of the curriculum.
She added, “It doesn’t come up in my work as a judge. 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.”
Jackson appeared surprised by the question.
“You've been gracious and charming. Why in the world would you call Secretary of Defense [Donald] Rumsfeld and [President] George W. Bush war criminals in a legal filing? It seems so out of character for you,” said Sen. John Cornyn (R-Tex.).
“I don't remember that particular reference. I was representing my clients in making arguments,” said Jackson, who as a public defender represented Guantanamo enemy combatants. “I did not intend to disparage the president or the secretary of Defense.”
Jackson filed a habeas brief that argued the government's use of torture may “constitute war crimes” under the Alien Tort Statute and named Bush and Rumsfeld in their official capacities — and then updated the brief to name Barack Obama when he became president.
"Public defenders don't choose their clients and yet they have to provide vigorous advocacy,” Jackson said. “That's the duty of a lawyer.”
Several senators hailed Jackson’s nomination to be the first Black woman on the Supreme Court, though Graham scolded Democrats for filibustering Bush’s nomination of Janice Rogers Brown to the D.C. Circuit Court, which prevented her the chance of becoming the first.
Still, a sense of pending celebration filled the back of the room among the lawmakers, civil rights activists and others who came to see history made.
“We are on the precipice of shattering another ceiling, another glass ceiling. It's a sign that we as a country are continuing to rise to our collective cherished highest ideals,” said Sen. Cory Booker (D-N.J.), one of three Black senators, on Monday.
“I just feel this sense of overwhelming joy as I see you sitting there,” he said.