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Supreme Court

5 TAKEAWAYS FROM KETANJI BROWN JACKSON'S SUPREME COURT HEARING

GOP senators launch salvos on "critical race theory," criminal sentencing and
representing Guantanamo inmates.

Key moments from day 2 of Ketanji Brown Jackson’s Supreme Court confirmation
hearing

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By Josh Gerstein and Marianne LeVine

03/22/2022 10:36 PM EDT

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Republicans unloaded a broad arsenal of attacks on Supreme Court nominee Ketanji
Brown Jackson on Tuesday, confronting her on issues ranging from her sentences
for child pornography defendants to her representation of Guantanamo Bay inmates
to alleged acts of judicial activism.

But as the hearing passed the 12-hour mark, Jackson seemed largely unruffled. In
a few instances, her irritation with the questioning led to responses delivered
“with all due respect” when it seemed she didn’t think much respect was due.

The barrage of questions is scheduled to continue tomorrow with another marathon
session where the 22 Senate Judiciary Committee members will get at least one
chance to press Jackson again on the issues they consider most urgent.

Here’s a look at some of the most notable exchanges and themes to emerge on
Jackson’s first day of grilling:

CRUZ TIES JACKSON TO ‘CRITICAL RACE THEORY’ BUT OTHER REPUBLICANS PASS

Cruz grills Ketanji Brown Jackson on critical race theory

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At the confirmation hearing for the first Black woman nominated to the Supreme
Court, one might have expected extensive back and forth about issues of race.
But few senators seemed eager to dwell on that topic.

One who defied the trend was Sen. Ted Cruz (R-Texas), arguing that Jackson had
ties to critical race theory — a view of pervasive racism in American society
and a favored target of Republicans in recent months.

After reminding viewers that he regularly reads Martin Luther King Jr.’s “Letter
from a Birmingham Jail” on the Senate floor, Cruz said Jackson’s role on the
board of Washington’s elite Georgetown Day School indicates she’s an adherent of
critical race theory.

“If you look at the Georgetown Day School’s curriculum, it is filled and
overflowing with critical race theory,” Cruz declared. On large placards, the
Texas senator displayed graphics from a book he said urges teaching that some
babies are racist.

Jackson said she has nothing to do with the school’s curriculum, but she rejects
that idea. “Senator, I do not believe that any child should be made to feel as
though they are racist or as though they are not valued … that they are victims
or they are oppressors,” the judge said.

However, the committee’s only Black member, Sen. Cory Booker (D-N.J.), said
Cruz’s efforts to link Jackson to critical race theory fell short.

“We have a saying in New Jersey: all hat and no cattle,” Booker quipped.

Late in the session, Sen. Marsha Blackburn (R-Tenn.) briefly resurfaced the
critical race theory issue, imploring Jackson to grant public school parents the
right to prevent their children from being taught such concepts.

“It is important to them to have a Supreme Court that is going to protect
parental rights to teach these children as parents see fit to have their
children taught,” Blackburn said before launching an attack on another
hot-button topic: rights for transgender people.

The tension on racial issues seemed more palpable outside the hearing room than
inside. African American lawmakers condemned a tweet from the Republican
National Committee that included a photo of Jackson and showed her initials
being scratched out and replaced with the letters, “CRT.”

“Stop this racial attack! Now! Enough is Enough! GOP starting up,” Rep. Sheila
Jackson Lee (D-Texas) wrote on Twitter.

While some on the right have slammed President Joe Biden’s campaign promise to
pick a Black woman for the court, one Judiciary Committee Republican, Sen. John
Cornyn of Texas, came close to endorsing Biden’s pledge.

“Obviously, your nomination is historic,” he told Jackson. “I think it’s long
overdue.”

Cornyn also asked Jackson if she celebrated President George H.W. Bush’s
nomination of Clarence Thomas to the Supreme Court, where he became that court’s
second Black justice.

While many liberals lament Thomas’ nomination, Jackson said she thinks she
welcomed it back in 1991.

“I’m trying to remember where I was at the time. I believe I did, yeah,” Jackson
said.

ON CHILD PORN SENTENCES, JACKSON TURNS THE TABLES ON CONGRESS

Ketanji Brown Jackson defends her record on child pornography sentencing

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As Jackson faced an onslaught of Republican criticism over her sentencing of
child pornography offenders, she sought to direct the blame toward an
institution far more unpopular than the federal judiciary: Congress.

Jackson politely told senator after senator that if they were unhappy with her
sentences in such cases, they could, er, look in the mirror.

MOST READ

1. 5 TAKEAWAYS FROM KETANJI BROWN JACKSON’S SUPREME COURT HEARING

2. BLACKBURN TO JACKSON: CAN YOU DEFINE ‘THE WORD WOMAN’?

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4. TRUMP TAKES BACK SENATE ENDORSEMENT FOR MO BROOKS

5. PROJECT VERITAS SAYS FEDS SECRETLY ACCESSED ITS EMAILS

“The evidence in these cases are egregious,” Jackson told Cruz. “The evidence in
these cases are among the worst that I have seen and, yet, as Congress directs,
judges do not calculate the guidelines and stop. They have to take into account
the personal circumstances of the defendant, because that is a requirement of
Congress.”

Turning the tables on her lawmaker-critics, Jackson argued that her sentences
are Congress’ fault because of a 1984 law that sets out the factors judges must
consider, including limiting unwarranted disparities between offenders.

“You all decide — you decide what the penalties are. You decide what the factors
are that judges use to sentence,” she said.

Republican senators noted that Congress initially made the sentencing guidelines
mandatory so Jackson — and many other judges — wouldn’t have had the chance to
opt for lower sentences in some cases. But in 2005 the Supreme Court ruled that
the guidelines could only be advisory, not mandatory.

Sen. Josh Hawley (R-Mo.) argued it was disingenuous for Jackson to deflect blame
to lawmakers. “Congress wanted them to be mandatory,” he said. “You had
discretion in these cases and used that discretion to choose the sentences that
you did.”

Durbin and Hawley exchange over Congress' record on child pornography
legislation

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Senate Judiciary Committee Chair Dick Durbin sided with Jackson. “We have
created the situation because of our inattention and unwillingness to tackle an
extremely controversial area in Congress and left it to the judges and I think
we have to accept some responsibility for that,” he said. “To hold this judge
responsible for the overall situation is to ignore our non-feasance,
malfeasance, whatever it might be.”

BREYER WHO?

On range of policy issues, Jackson tells Cotton: ‘I will stay in my lane’

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While Jackson said for decades she called Stephen Breyer, for whom she clerked,
“my justice,” she broke with him on several occasions Tuesday as she sought to
court the votes of Republican senators.

In his first round of questions, Sen. Chuck Grassley (R-Iowa), the top
Republican on the Judiciary Committee, asked Jackson about Breyer’s remarks that
a judge can’t perform their job properly without keeping in mind international
law. Jackson responded that while she has “nothing but the highest esteem and
respect for my former boss … there are very very few pieces I think in which
international law plays any role, and certainly not in interpreting the
Constitution.”

Later on in her confirmation hearing, Sen. Ben Sasse (R-Neb.) pressed Jackson on
which justice she’s molded herself after. Jackson responded: “I don’t really
have a justice that I have molded myself after,” adding that she’s “reluctant to
establish or to adopt a particular label.” Jackson stated that she believes the
Constitution is “fixed in its meaning,” but said there are times when “looking
at those words are not enough to tell you what they actually mean.”

In her exchange with Sasse, Jackson added that it “appears now that the Supreme
Court has taken Justice [Antonin] Scalia’s view that the prevailing
interpretative frame for interpreting the Constitution is now very clearly
looking back through history.”

IS JACKSON IN AN INFORMATION BUBBLE?

While Jackson held forth on a wide range of legal issues Tuesday, there were
moments that seemed to expose what were sometimes surprising gaps in her
knowledge.

Although she spent much of the 2000s in Washington working as a public defender
and for private law firms, Jackson said it never came to her attention that
Democrats blocked President George W. Bush’s nomination of California Supreme
Court Justice Janice Rogers Brown to the D.C. Circuit.

GOP senators complained bitterly at the time that the resistance was due to
fears that putting the African American, conservative, female judge on the
appeals court would be a stepping stone to her nomination to the Supreme Court
by Bush or another Republican.

“I didn’t know that,” Jackson said under questioning by Sen. Lindsey Graham
(R-S.C.)

Jackson also said to Cruz that she wasn’t aware that The New York Times recast
central claims of its critically acclaimed series on the pervasive role of
racial discrimination throughout American history.

Jackson also told Graham she was unaware of what he called “a concerted effort”
by some liberal activists to denigrate other potential contenders to replace
Breyer, including South Carolina federal judge J. Michelle Childs. POLITICO
reported that among those buffing up her resume on Wikipedia while making Childs
and another contender sound less appealing to liberals was one of Jackson’s
former clerks.

“I was focused on my cases,” Jackson said. “I didn’t know that. It is
troublesome that people are or were doing things related to the nomination.”

LINDSEY CUTS LOOSE

Graham walks out of hearing after sparing with Durbin over Gitmo detainees

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Tuesday’s 12-hour-long hearing never went completely off the rails, but there
were moments where the senate’s history of decorum seemed to be threatened.

Graham appeared unusually animated, even agitated during his questioning of
Jackson. As that concluded, he then had a heated exchange with Durbin, painting
Jackson’s work for Guantanamo detainees in almost apocalyptic terms.

“Advocates to change the system like she was advocating would destroy our
ability to protect this country,” the South Carolina Republican shouted. “We are
at war.”

Durbin said it was costing the U.S. government half a billion dollars a year to
detain about 40 inmates at Guantanamo.

Ketanji Brown Jackson defends her past defense of Gitmo detainees

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Graham said he didn’t let care and let loose a mild profanity, referring to
released Gitmo prisoners holding positions of power in the Taliban regime or, in
his words, “the frigging Afghan government.”

“I hope they’ll die in jail if they’re going to go back and kill Americans, it
won’t bother me one bit if they die in prison,” Graham said, before exiting the
hearing room in a huff.

* Filed under:
* Senate Judiciary Committee,
* Dick Durbin,
* Lindsey Graham,
* U.S. Supreme Court,
* Cory Booker,
* Cory Booker 2020,
* Ted Cruz,
* Josh Hawley,
* Ketanji Brown Jackson,
* The latest updates from Ketanji Brown Jackson’s Supreme Court confirmation
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