Ketanji Brown Jackson’s second day of Supreme Court confirmation hearings lasted more than 12 hours. But, over the course the marathon session, there was a common theme: Republicans accuse the D.C. Circuit Court judge accused of being weak on crime
The GOP’s criticisms were varied in severity. These included questions regarding Jackson’s involvement in Guantanamo Bay Supreme Court cases and incendiary remarks concerning sentences Jackson gave to those convicted of child porn offences. Jackson refuted this characterization by saying that she is concerned about the safety of public safety. She also said she did her job properly on criminal justice issues as a federal judge, sentencing commissioner and public defender.
The 50-50 Senate is controlled by Democrats. Vice President Kamala Harris broke a tie. They could agree to confirm Jackson as the Supreme Court’s first Black woman without the need for Republican votes if they stay together. Since Republicans have little recourse to stop Jackson’s confirmation, NYU law professor Melissa Murray says that she views the “soft on crime” attacks through a political lens. “It seems more like the Republicans are laying soundbite breadcrumbs that they will reprise in the 2022 midterm elections and the 2024 general elections to brand the Democrats and the Biden Administration as soft on crime—the kind of soundbites that play well with suburban swing voters, as well as the GOP base,” she says in an email. “Judge Jackson’s confirmation hearings have merely provided a forum for this form of political theater.”
Garrett Ventry, a former Republican aide for the Senate Judiciary Committee, says he believes Jackson’s “record on crime and terrorism is very concerning.” But he also adds that “it aligns with Republicans’ message for the midterms, which is [that] Democrats have created a crime crisis, causing Americans to feel less safe.” Senator Tom Cotton, a Republican from Arkansas, cited rising crime levels in his questions, asking Jackson whether the United States needs “more or fewer police.” Jackson responded that the issue is not something judges should weigh in on, as it’s a matter of policy.
TIME was told by a Democratic Senate Judiciary adviser that Democrats anticipated such attacks and that Democratic Senators were ready to ask questions to give Jackson a chance to answer the allegations. Numerous Democratic Senators mentioned her endorsements of the National Fraternal Order of Police as well as the International Association of Chiefs of Police. “As someone who has had family members on patrol and in the line of fire, I care deeply about public safety,” Jackson said when asked by Democratic Vermont Senator Patrick Leahy how she would respond to accusations that she’s “soft on crime.” “I know what it’s like to have loved ones who go off to protect and to serve and the fear of not knowing whether or not they’re going to come home again because of crime in the community.”
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Several Republican legislators cited Josh Hawley, a Republican Missouri senator, as an example of how Jackson was able to give lighter sentences than the federal guidelines in child pornography cases. Jackson served her time as a D.C. District Court Judge. Hawley gave graphic descriptions of specific cases during his questioning. One example was a case where Jackson sent a 18-year old defendant to three months imprisonment for posting images showing child sexual abuse. Jackson refused to issue Jackson a more severe sentence. Jackson had been asked by the prosecution for at least two years, while federal guidelines called for even longer sentences.
Jackson said the facts of the case were “heinous” and “egregious,” and that she believes she appropriately used her discretion as a judge to consider other factors in her sentencing. Jackson told Hawley that sentencing is “not a numbers game” and judges must consider a number of factors when sentencing such cases. “[You’re]Whether or not to take? [these cases] seriously or I have some reason to handle them in either a different way than my peers or a different than other cases,” Jackson said. “And I assure you that I do not.” Hawley told the judge in response that he was “questioning [her] discretion and judgment.”
Jackson pointed out that sentencing guidelines to child pornographer offenders were created before the advent of the internet. They are determined by the amount an offender has. “The way that the guideline is now structured, it’s leading to extreme disparities in the system. Because it’s so easy for people to get volumes of this kind of material now,” Jackson said.
Jackson was also repeatedly asked about her work involving Guantanamo Bay detainees, both when she worked as a federal defender representing detainees’ request for habeas review and when she worked in private practice co-writing amicus briefs on behalf of clients in Supreme Court cases involving the military prison. South Carolina Republican Senator Lindsey Graham questioned Jackson about her briefs arguing Guantanamo inmates have habeas review rights. Graham and Democratic Illinois Senator Dick Durbin then clashed in a particularly tense moment, when Durbin mentioned that each Guantanamo detainee “is being held at the expense of $12 or $13 million per year.” “We’re at war, we’re not fighting crime! This is not some passage of time event,” Graham shouted back. “As long as they’re dangerous, I hope they all die in jail if they’re going to go back to kill Americans.” Jackson told Graham that the arguments in the briefs were those of her clients, not her own views.
Jackson rarely shared her personal opinion on any issue, typically couching her answer on any given topic in how it’s codified in law or established in judicial precedent. Jackson also refused to comment on politically hot topics such as the proposal to increase the Supreme Court’s number of Supreme Court seats, which Republican members of the committee decried Monday as an attack upon the Supreme Court’s legitimacy. “In my view, judges should not be speaking to political issues, and certainly not a nominee for a position on the Supreme Court,” Jackson told the committee. Jackson said Jackson supports the constitutional right of a woman to stop a pregnancies as it is established. Roe V. Wade—whose fate the high court may decide later this year—is “settled law.”
Not every Republican focused on Jackson’s criminal justice record. Senator Ben Sasse, a Republican from Nebraska, questioned her about her judicial philosophy, which she described instead as a “methodology” she’d developed to ensure she is ruling “impartially” and “adhering to the limits” of her judicial authority. “This is where I’m really observing the constraints on my judicial authority,” she said. “I am trying, in every case, to stay in my lane.”
Numerous Republican members of the committee expressed dissatisfaction with her answer. They argued that she didn’t adequately explain how she would interpret the Constitution. “It still appears to me that there’s a very basic difference between a judicial philosophy and a judicial methodology,” Sasse said at the end of his allotted 30 minutes, telling Jackson that she hasn’t “claimed a judicial philosophy at all.”
Ted Cruz (Republican from Texas) asked Jackson questions about critical race theory. This interpretive framework has been banned by increasing numbers of states’ legislatures from being taught in public schools and is now a hot political topic ahead of the midterm elections. Jackson told Cruz that to her knowledge “critical race theory is an academic theory that is about the ways in which race interacts with various institutions,” adding that it “doesn’t come up” in her work as a judge.
Miles Coleman, the associate editor of the election forecaster ‘Sabato’s Crystal Ball’ at the University of Virginia’s Center for Politics, says he thinks both parties used Tuesday’s session to reinforce their overall political message. “For Democrats, that seems to be, ‘if you stick with us, we’ll continue to build an inclusive government that looks like the country,’” Coleman says in an email. “For Republicans, casting Jackson as weak on crime could be another way to show that Biden—and his appointees—are simply ‘in over their heads.’”
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