Ketanji Brown Jackson’s second day of Supreme Court confirmation hearings lasted more than 12 hours. But over the course of the marathon session, a central theme emerged: Republicans accused the D.C. Circuit Court judge of being weak on crime.
The severity of the GOP criticisms varied widely, ranging from questions about amicus briefs Jackson worked on in Guantanamo Bay Supreme Court cases to incendiary remarks about sentences she issued to people found guilty of gruesome child porn offenses. Jackson refuted the overall characterization, saying she cares about public safety and did her job appropriately on criminal justice issues in her work as a public defender, a sentencing commissioner, and a federal judge.
Democrats control the 50-50 Senate with Vice President Kamala Harris breaking a tie. If they stick together, they could confirm Jackson to be the first Black woman on the Supreme Court without any Republican votes. 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.
A Democratic Senate Judiciary aide tells TIME that Democrats had anticipated these types of attacks, and Democratic Senators were prepared to tee up questions that would give Jackson an opportunity to respond to the accusations. Numerous Democratic Senators cited her endorsements from the National Fraternal Order of Police and 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.”
Several Republican lawmakers amplified allegations from Republican Missouri Senator Josh Hawley that Jackson had issued lighter sentences than what federal guidelines recommended in child pornography cases when she served as a D.C. District Court judge. During his questioning, Hawley read graphic accounts of particular cases, including a 2013 case in which Jackson sentenced an 18-year-old defendant to three months in prison for sharing images of child sexual abuse. Hawley pressed Jackson on why she did not issue a longer sentence, given that the prosecution asked for at least a two-year sentence and federal guidelines recommended even longer.
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] questioning whether or not I 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.”
Earlier in the day, Jackson noted that the sentencing guidelines for child pornography offenders, which are based on the volume an offender possesses, were written before the internet. “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. Senator Lindsey Graham, a Republican from South Carolina, asked Jackson about briefs she wrote for clients arguing Guantanamo detainees have a right to habeas review. 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. She also declined to weigh in on hot-button political topics like the progressive proposal to expand the number of seats on the Supreme Court, which Republican committee members decried on Monday as an attack on the legitimacy of the high court. “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 also said that she believes the constitutional right to terminate a pregnancy as established in 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.”
Multiple Republican committee members expressed frustration with the answer, arguing she did not adequately address how she would approach interpreting 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.”
Senator Ted Cruz, a Republican from Texas, asked Jackson about the interpretive framework critical race theory, which an increasing number of state legislatures have banned from public school curriculums, and which has become a controversial political issue ahead of the midterms. 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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