What We Learned During Ketanji Brown Jackson’s Hearings
The Senate Judiciary Committee’s two days of questioning of Supreme Court nominee Ketanji Brown Jackson were marked by tense exchanges between Senators, the airing of grievances over confirmations past, and inflammatory descriptions of gruesome child porn cases that Jackson once ruled on.
But they also illuminated new insights into Judge Jackson’s record, decision-making process, and approach to her work.
Jackson is currently a D.C. judge. Circuit, has a unique professional history—she’s the first former federal public defender to ever be nominated to the Supreme Court. She would become the highest court justice with real trial experience if she is confirmed. When the Commission was grappling with controversial topics like child porn sentencing, she served as vice-chair for four years. Each of these professional experiences were aggressively probed during Jackson’s over 22 hours of questioning, as Republicans sought to suggest she is weak on crime. Jackson vigorously denied the accusation, often using the reference to family members who were law enforcers as a way of refuting the stereotype. She also debated with lawmakers over whether she has a “judicial philosophy,” and was asked questions about controversial topics ranging from abortion to adding seats to the Supreme Court.
Here’s what we learned from Jackson’s confirmation hearings.
She’ll recuse herself from the upcoming affirmative action case
Ted Cruz, a Texas Republican senator from Texas said that if she was confirmed to the Supreme Court she would withdraw herself from the case that it will hear next term. This could have a significant impact on the future affirmative action policy in higher education. The case alleges Harvard University’s admissions process discriminates against Asian American applicants, and Jackson sits on the Board of Overseers of the school. “That is my plan, senator,” Jackson said when Cruz asked if she intended to recuse herself.
She looks Roe V. WadeAs settled law
Senators from both parties of the aisle repeatedly asked Jackson about abortion. Jackson said she believes a woman’s constitutional right to terminate a pregnancy protected by 1973’s landmark decision Roe V. Wade is “the settled law of the Supreme Court.”
It is possible that the Supreme Court will decide what happens to the Supreme Court. Roe in the coming months—before Jackson would take the bench—after hearing a major challenge to the decision this term in Dobbs v. Jackson Women’s Health Organization. Dianne Feinstein from California asked Jackson if her views were. Roe V. Wade as being a “super precedent,” meaning a decision that American society had significantly relied upon for a long period of time. “All Supreme Court cases are precedential, they’re binding their principles and their rulings have to be followed,” Jackson said. “Roe and CaseyAs you said, they have been confirmed by the court, and can be relied on. And reliance is one of the factors that the court considers when it seeks to revisit or when it’s asked to revisit a precedent.”
Marsha Blackburn (Republican from Tennessee) also inquired about the possibility. Roe being overturned, asking: “Do you commit to respecting the court’s decision if it rules that Roe was wrongly decided?”
“Whatever the Supreme Court decides in Dobbs will be the president of the Supreme Court,” Jackson responded. “It will be worthy of respect in the sense that it is the precedent, and I commit to treating it as I would any other precedent.”
Blackburn also pushed Jackson on her personal views on abortion, asking the judge about a 2001 amicus brief she co-wrote while working at the law firm Goodwin Procter on behalf of reproductive rights groups supporting a law in Massachusetts that created a “buffer zone” around people approaching abortion clinics where abortion opponents could not protest. Blackburn asked Jackson about language in the brief that said: “Few American citizens who seek to exercise constitutionally protected rights must run a gauntlet through a hostile, noisy crowd of ‘in-your-face’ protesters.”
“When you go to church and knowing there are pro-life women there, do you look at them, thinking of them in that way?” Blackburn asked. “Senator, that was a statement in a brief made in argument for my client,” Jackson responded. “It’s not the way that I think of or characterize people.”
She says she has a judicial “methodology”
Senator’s on both sides of the aisle pressed Jackson on her judicial philosophy, which she characterized as a “judicial methodology.” She laid out a three-step process she follows for interpreting the law to insure she is impartial and “adhering to the limits” of her “judicial authority.” First, Jackson said, she makes sure she’s proceeding from a position of neutrality. Second, she makes sure she’s evaluating the facts and necessary material. She then interprets the law and applies it to the facts of the case.
Jackson was pushed by several Republican senators to clarify her answer. They claimed she didn’t properly explain her approach to interpreting the Constitution. When asked by Senator Ben Sasse of Nebraska which Supreme Court justice she most closely resembles, Jackson said she doesn’t have a justice she’s “molded” herself after. “What I have is a record,” she said. “I have 570-plus cases in which I have employed the methodology that I’ve described and that shows people how I analyze cases.” Sasse expressed exasperation at this answer. “It still appears to me that there’s a very basic difference between a judicial philosophy and judicial methodology,” he said.
Jackson disagreed, telling Senator Chuck Grassley, a Republican from Iowa: “The philosophy is my methodology,” she said. “It is a philosophy that I have developed from practice.”
“Unlike some judges who come to appellate work from academia and who have some overarching theory of the law, I approach cases from experience, from practice and consistent with my constitutional obligations,” she continued.
Her belief is that dissent can prove to be a powerful tool.
If Jackson is confirmed to the Supreme Court, she’s expected to fill Justice Stephen Breyer’s seat in the liberal minority of the 6-3 bench. When pressed by Democratic Minnesota Senator Amy Klobuchar on what she views as the purpose of dissent, Jackson said there have been many justices in history that have used the “dissent mechanism” to describe their views in ways that “become persuasive to others in the future.”
She mentioned Justice John Marshall Harlan who was the only dissenter in her case. Plessy v. Ferguson, which legalized segregation, became the “blueprint” for Justice Thurgood Marshall to make arguments to overturn Plessy Brown v. Board of Education.
She feels there are discrepancies in sentencing guidelines for child porn.
Numerous GOP Senators raised the controversial topic of child pornography sentencing guidelines. This was in view of Jackson’s earlier sentencing decisions. Missouri Republican Senator Josh Hawley accused Jackson of imposing shorter sentences on child pornol offenders than the federal guidelines. The White House called Hawley’s allegation a “weak, QAnon-signaling smear.”
American law enforcement has been debating for years whether federal guidelines to child porn offenders do not reflect the age of internet. This is because the harshness of sentences is determined by the amount of material the offender has. With the advent of internet, it has changed fundamentally how easy, how much and how quickly such material is available.
In 2005, the Supreme Court weighed in on the issue, deciding that sentencing requirements for child porn cases were now advisory—meaning the sentence would be up to the discretion of the judge. Jackson stated that Jackson tried to use her discretion in child porn cases and weigh the guidelines set by Congress. “The point of the guidelines is to assist judges in determining what punishment to provide in cases,” Jackson argued. “And they are horrible cases, but the idea is that between the range of punishment that Congress has prescribed, judges are supposed to be providing proportional punishment based on what a person has done.”
On the second day of questioning, Jackson spoke about the way the internet has changed child porn sentencing, telling Senator Lindsey Graham, a Republican from South Carolina, that “you can be doing this for 15 minutes, and all of a sudden you are looking at 30, 40, 50 years in prison.” Graham interrupted and said: “Good, absolutely good.” Jackson responded that “our sentencing system that Congress created… is a rational one. It is designed to help judges do justice in terrible circumstances by eliminating unwarranted disparities, by ensuring that the most serious defendants get the longest periods of time.”
The focus from GOP lawmakers on her child porn sentencing record seemed to frustrate Jackson by the second day of hearings, and she told Graham that she regrets that in “a hearing about my qualifications to be a justice on the Supreme Court, we have spent a lot of time focusing on this small subset of my sentences.”
She declined to weigh in on the ‘shadow docket’ or court expansion
Jackson did not respond to questions concerning controversial reforms being proposed for the High Court.
Klobuchar asked Jackson about the Supreme Court’s so-called “shadow docket”—the court’s use of emergency orders and summary decisions to rule on cases without oral arguments. Some progressive groups have called for a reform of the high court’s emergency docket, arguing it allows for an abuse of power.
Klobuchar asked Jackson when it was appropriate for her to use the shadow docket. Jackson responded that deciding when to use emergency powers is “a balance the court has to consider.”
“On the one hand, it has always had an emergency docket; the need for flexibility, the ability to get answers to the party at issue is something that is important in our system,” Jackson said. But she added that she is not “privy at the moment to the justices’ views on why and how they’re using the emergency docket,” and said that if she were confirmed she would look into the issue.
Jackson was also pressed on her thoughts on progressive proposals to expand the size of the Supreme Court, which GOP lawmakers argued would threaten the court’s legitimacy. “In my view, judges should not be speaking to political issues, and certainly not a nominee to the Supreme Court,” Jackson said.
She said she wasn’t a ‘judicial activist’ against Donald Trump
Jon Ossoff (Democrat from Georgia) asked Jackson questions about her 2019 ruling, in which Jackson ruled that Donald Trump’s former White House Counsel Don McGahn could respond to a subpoena under absolute immunity. “Presidents are not kings,” Jackson wrote in the decision.
“What does that mean?” Ossoff asked the judge Wednesday morning.
“Our constitutional scheme—the design of our government—is erected to prevent tyranny,” she responded.
Hours later, Graham brought up another 2019 ruling in which Jackson temporarily blocked Trump’s attempt to fast-track deportations of people in the country illegally, which was later overturned by the D.C. Circuit Court. In a heated exchange in which Graham repeatedly interrupted the judge, Graham told her: “You reached a conclusion because you disagreed with the Trump Administration… That, to me, is Exhibit A of activism.” Jackson disagreed, saying that Congress gave the Department of Justice the authority to determine what length of time a person needs to be in the country illegally before they were deported—not to “deport everyone.”
He responded “that argument fell on deaf ears,” meaning that her decision was overturned by the D.C. Circuit Court. “Understood,” she said. “That’s our appellate process.”
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