Ketanji Brown Jackson's confirmation hearing: Day 2

Judge Ketanji Brown Jackson was asked by Sen. Patrick Leahy, a Democrat from Vermont, about accusations that she is "soft on crime or even anti law enforcement" because she worked as a public defender during her career.

Jackson noted in her response that she has multiple family members who have worked as police officers. She said that her brother worked as a police officer in Baltimore, and has two uncles who had careers in law enforcement — one who became the Chief of Police of the City of Miami Police Department in the 1990s.

She said that crime, its effects on the community, and the need for law enforcement "are not abstract concepts or political slogans to me."

Jackson went on to say that as a lawyer and as a citizen, "I care deeply about our Constitution and the rights that make us free." 

"As you say, criminal defense lawyers perform a service and our system is exemplary throughout the world precisely because we ensure that people who are accused of crimes are treated fairly," she said to Leahy and the committee.

She said that it's important to her that people are "held accountable for committing crimes, but we have to do so fairly, under our Constitution." 

Read more about her record on crime here:

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How Ketanji Brown Jackson is preparing for questions about her record on crime

Judge Ketanji Brown Jackson said that the guidance that Congress has given courts for sentencing certain child porn offenders “appears to be not consistent with how these crimes are committed,” and therefore creating “extreme disparity” in the sentences that are being handed down.

Her comments marked the first time she weighed in on why judges are often deviating from the statutory sentencing guidelines in these cases. Jackson said that the current guidelines – which are created by statute but, under Supreme Court precedent, are not binding on judges – are now “leading to extreme disparities in the system."

“It is not doing the work of differentiating who is the more serious offender in the way that it used to,” Jackson said. Courts “are adjusting their sentences in order to account for the changed circumstances, but it says nothing about the courts’ view of the seriousness of this offense."

Ahead of her hearings, several former judges, lawyers and other legal experts have defended Jackson’s record on these cases. Republicans have also zeroed in on the work she did as a vice chair of the US Sentencing Commission, when it issued a 2012 report calling on Congress to revise the guidelines to realign the sentences based on the type of child porn offense and to lower the mandatory minimums of two categories of offenses. Those recommendations were issued unanimously by the commission, which included GOP appointees.

The courts’ “ultimate charge” from Congress “is to sentence in a way that is sufficient but not greater than necessary to promote the purposes of punishment,” Jackson said Tuesday.

Judge Ketanji Brown Jackson defended her advocacy for Guantanamo Bay detainees, a part of her record that Republicans have expressed skepticism over and are likely to question her about.

Jackson said there were lawyers who after 9/11 "recognized we couldn't let the terrorists win by changing who we were fundamentally" and that meant that those accused by the US government of having engaged in the September 11 attacks, under the Constitution, were entitled to representation and fair treatment.

"That's what makes our system the best in the world. That's what makes us exemplary," she added.

As an assistant federal public defender, Jackson represented a Guantanamo Bay detainee, Khi Ali Gul. She also for advocated for detainees in amici briefs in cases before the Supreme Court when she worked at the firm Morrison & Foerster.

Sen. Chuck Grassley brought up during his questioning of Judge Ketanji Brown Jackson that while speaking at an event at the University of Chicago law school in 2020, she quoted Martin Luther King, Jr.'s "I Have a Dream" speech, telling the audience how King said it was his hope that "the sons of former slaves and the sons of former slave owners would be able to sit down together at the table of brotherhood."

Grassley noted that Jackson went on to talk about how quickly things in the country then changed, "including the civil rights laws over the next few years because of civil rights movement," adding that Jackson said in this speech at the University of Chicago, "less than a decade after Dr. King's words, that was the world that you inhabited."

Grassley went on to ask Jackson if these quotes still reflect her views on this "very important topic" of civil rights today. She said yes.

She said that when she was born in 1970 and went to school in Miami, Florida, the city was "completely different." 

Jackson continued: "I went to a diverse public junior high school, high school, elementary school. And the fact that we had come that far was, to me, a testament to the hope and the promise of this country, the greatness of America, that we could go from racially segregated schools in Florida to have me sitting here as the first Floridian ever to be nominated to the Supreme Court So yes, senator, that is my belief." 

Judge Ketanji Brown Jackson was asked about accusations by Republican Sen. Josh Hawley of Missouri that her record as a judge shows that she has handed down lenient sentences to convicted child pornography defendants during her career. Sen. Dick Durbin of Illinois asked Jackson to tell the committee "what was going through your mind" when deciding sentencing during these types of cases.

Jackson began her response by telling the committee that "as a mother, and a judge who has had to deal with these cases, I was thinking that nothing could be further from the truth" in regards to Hawley's accusations.

Jackson told the committee that Congress has decided what it is that a judge has to do in these and any other cases when they sentence. "And that statute, that statute doesn't say look only at the guidelines and stop, the statute doesn't say impose the highest possible penalty for this sickening and egregious crime," Jackson said. "The statute says calculate the guidelines, but also look at various aspects of this offense and impose a sentence that is, doesn't say impose the highest possible penalty for this sickening and egregious crime." 

Jackson said that in every child pornography case "it is important to me to make sure that the children's perspective, the children's voices are represented in my sentencing." 

"And what that means is that for every defendant who comes before me, and who suggests as they often do that they're just a looker, that these crimes don't really matter, they collected these things on the internet and it's fine, I tell them about the victim's statements that have come in to me as a judge," she said. 

Judge Jackson said in the past victims have told her "that they will never have a normal adult relationship" and they have gone into prostitution, started using drugs, or developed agoraphobia and been unable to leave the house.

Jackson noted that in each of these cases where the defendants were found guilty she has imposed a significant sentence "and all of the additional restraints that are available in the law." 

"These people are looking at 20, 30, 40 years of supervision. They can't use their computers in a normal way for decades. I am imposing all of those constraints because I understand how significant, how damaging, how horrible this crime is," she said.

Some more context: Durbin noted during his remarks that the cases Hawley referred to yesterday during his statement "all resulted in incarceration of some magnitude." 

Durbin said the notion that Judge Jackson looks at child pornography cases "casually or with leniency" is belied by her record.

Last week, Hawley launched a Twitter thread charging that Jackson's record reveals a "pattern" of letting child porn offenders off the hook for their appalling crimes, both as a judge and as a policymaker. "This goes beyond 'soft on crime,'" he charged.

The White House blasted Hawley for the attacks. A White House spokesman called the tweets "toxic and weakly-presented misinformation that relies on taking cherry-picked elements of her record out of context -- and it buckles under the lightest scrutiny."

Durbin said Sunday that Hawley was "wrong" and "unfair" in his analysis.

Read more about this here.

Judge Ketanji Brown Jackson, just as Judge Amy Coney Barrett did during her confirmation hearing in 2020, declined to comment on the idea of court packing, or adding justices to the Supreme Court beyond the current nine.

Some context: Some Democrats have called for adding justices to the high court to counteract the current 6-3 conservative-liberal dominance, an idea that President Joe Biden has not embraced.

Judge Ketanji Brown Jackson on Tuesday outlined what she described as her “methodology” for approaching cases.

Her comments came in response to a question from Senate Judiciary Chairman Dick Durbin of Illinois, who asked her to elaborate on her judicial philosophy, as Republicans have claimed she has not yet been specific enough on that point. She said that the methodology she uses ensures that she is impartial and that she is “adhering to the limits” of her “judicial authority.”

“I am acutely aware that as a judge in our system I have limited power and I am trying in every case to stay in my lane,” she said.

Describing a three-step process, Jackson said step one is ensuring that she was “proceeding from a position of neutrality,” adding that she clears her mind about about any “preconceived notion” for how the case should come out. Step two is taking all the "appropriate inputs” for the case — the arguments, written briefs, hearings, friend-of-the-court arguments, as well as the factual record. The final step is the interpretation of the law to the facts of the case. “This is when I am observing the constraints” on her judicial authority, she said.

In doing so, she she said she is trying "to figure out what the words mean as they were intended by the people who wrote them," while taking into precedent into account.

She will likely have to address this question multiple times Tuesday.

Day two of the Senate Judiciary Committee confirmation hearings for President Biden's Supreme Court nominee Judge Ketanji Brown Jackson has begun today.

Jackson, who currently sits on DC's federal appellate court, faces questions from lawmakers. She is expected to be grilled by GOP senators about her legal record, including on crime.

The Senate Judiciary Committee will soon begin questioning President Biden's Supreme Court nominee Judge Ketanji Brown Jackson today.

She is expected to be grilled by GOP senators on the committee. There is still grousing by Republicans that Biden promised to pick a Black woman.

Sen. Lindsey Graham of South Carolina was frustrated that Democrats have opposed Black and Latino conservatives — specifically, he mentioned Miguel Estrada, who withdrew his nomination for a lower court in 2003, and Janice Rogers Brown, who was only confirmed to a lower court after a long delay.

"So if you're a Hispanic or African American conservative, it's about your philosophy. Now, it's going to be about the historic nature of the pick," Graham said.

Graham and Sen. Chuck Grassley of Iowa both said they will pursue questions about how and why Jackson was picked and whether liberal groups had too much say. Graham was frustrated that a Black woman from South Carolina, Michelle Childs, was opposed by liberal groups. Grassley used the term "dark money" to suggest a nefarious influence campaign.

(Sidebar: The amount of money and lobbying to influence these picks — both Republican and Democratic — is remarkable, for sure.)

Brown will take questions on any number of judicial issues and hot button topics, ranging from the law of armed conflict to the current GOP buzzword "parental rights," and whether transgender women should be allowed to compete on women's sports teams.

She'll try to be as non-controversial as possible when answering them — she's told senators she doesn't have a specific judicial philosophy.

Jackson promised to be independent and transparent, but some Republicans suggested she'll need to reveal more.

"I can only wonder: What's your hidden agenda?" said Sen. Marsha Blackburn, the Tennessee Republican, in an opening statement that sought to raise doubts about Jackson's record as a judge.

"Is it to let violent criminals, cop killers and child predators back to the streets? Is it to restrict parental rights and expand government's reach into our schools and our private family decisions? Is it to support the radical left's attempt to pack the Supreme Court?" Blackburn asked.

While they are promising a respectful inquiry, Republicans will not keep things entirely out of the gutter.

Both Blackburn and Sen. Josh Hawley of Missouri have questioned Jackson's role in child pornography cases, when she handed down sentences shorter than those suggested by either the US Sentencing Commission or prosecutors.

That sounds very bad — you hear how Republicans will use it in Blackburn's quote above -- but multiple fact checks, including this one by CNN, have noted the record is a bit more complicated.

One former Republican prosecutor said there is ample reason to oppose Jackson's nomination, but to allege she is soft on child predators is not one of them.

"The allegation appears meritless to the point of demagoguery," writes Andrew C. McCarthy for the National Review.

The votes Jackson needs to be confirmed: In the 50-50 Senate, Vice President Kamala Harris could break a tie and place Jackson on the bench. No Democrats have said they oppose her, and it would take a serious fumble at these hearings to endanger her nomination. It is also possible a number of Republicans will support her, but likely not enough to give her the 87 votes outgoing Justice Stephen Breyer received.

Read more here.