Day 2 confirmation recap: Jackson pressed on ‘lenient’ sentencing in child porn cases, CRT, and when life begins

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As Day 2 of the confirmation hearings of Supreme Court nominee Ketanji Brown Jackson kicked off, Democrats praised Jackson and Republicans continued to challenge her on a number of issues within her judicial philosophy and record.


Quick Facts


When asked about her defense of Guantanamo Bay detainees, Jackson answered that in the aftermath of 9/11, many took up brave defenses of America, including soldiers. She stated that lawyers did so as well by recognizing that America’s values were under attack, claiming that we couldn’t let the terrorists win by changing who we were fundamentally. “The people accused by our government of participating in the attack were entitled to a defense, that’s what makes our system the best in the world, that’s what makes us exemplary,” Jackson said.

She added that federal public defenders don’t get to choose their clients.

When asked how she views the Constitution and the idea that it is a living document, she said, “I do not believe that there is a living Constitution in the sense that it’s changing and that it’s infused with my own policy perspective or with the policy perspective of the day.” She added, “Instead, the Supreme Court has made clear that when you’re interpreting the Constitution, you’re looking at the text at the time of the founding and what the meaning was then as a constraint on my own authority. So, I apply that constraint. I look at the text to determine what it meant to those who drafted it.”

When asked by Sen. Dick Durbin, D-Ill., if she was in favor of court packing, she replied, “I agree with Justice Barrett and her response to that question when she was asked before this committee.” She added, “My North Star is the consideration of the proper role of a judge in our constitutional scheme. In my view, judges should not be speaking to political issues, and certainly not a nominee to the Supreme Court.”

One of the tensest moments of the day came during Sen. Lindsey Graham’s questioning of Jackson. Graham pushed her on whether the U.S. government should be able to detain enemy combatants. The senator referred to an amicus brief she filed while in private practice which was signed by 20 judges advocating for their release. Jackson said that the brief was the view of her clients and not necessarily her own. She also had no memory of an allegation that she called President George W. Bush and Secretary of Defense Donald Rumsfeld war criminals, a claim that Sen. Dick Durbin, D-Ill., later disputed.

When asked about Roe v. Wade and Planned Parenthood v. Casey, she confirmed that they are precedent and have been affirmed but declined to embrace the idea of a super precedent and said that previous cases can be reviewed if the right criteria are met.

Sen. John Kennedy, R-La., asked Judge Jackson point blank: “When does life begin, in your opinion?” “Senator, um…I don’t know,” Jackson answered with a laugh, before repeating, “I don’t know.” 

When Sen. John Cornyn, R-Texas, pressed Jackson on the legal concept of substantive due process being used by the Court to invalidate state laws and create enumerated rights, Jackson affirmed that judges are not policymakers. She said that they interpret the laws, not make them, but defended the substantive due process usage as to how the Supreme Court has interpreted the 14th Amendment and has set guidelines for its use.

Jackson faced sharp criticism from Texas Republican Sen. Ted Cruz who questioned her on possible ties to Critical Race Theory (CRT). One line of questioning centered on the use of a book titled “Antiracist Baby” used by Georgetown Day School, where Jackson serves on the board of trustees. She answered, “I do not believe that any child should be made to feel as though they are racist,” or oppressors. She added that she did not know if CRT is taught at the school as the board doesn’t control this. She claimed she did not use CRT in her rulings and was not familiar with it.

Her response was questioned by many who follow CRT issues, including investigative journalist Christopher Rufo, who tweeted, “Ketanji Brown Jackson told @tedcruz she has ‘never studied critical race theory,’ but she has cited the founder of critical race theory, Derrick Bell, and endorsed its core concepts, including white privilege and intersectionality, in her speeches. She is lying.”

Perhaps the most high-profile dispute of the hearings was over Jackson’s sentencing of child pornography perpetrators. Republicans claimed that she was overly lenient and granted a punishment lower than the government requested in every case in which she had discretion. Democrats claimed she is within the mainstream on sentencing, and Sen. Chris Coons, D-Del., named three cases in which Jackson gave the sentence the government asked for, including one for 20 years. 

Jackson, somewhat emotionally, defended her record, claiming that she adhered to the sentencing guidelines handed down by Congress and the evidence of the case and that the U.S. Sentencing Commission was adjusting to this heinous problem that has morphed with the expansion of the Internet.

However, Sen. Josh Hawley, R-Mo., pressed her to explain her reasoning on specific cases. He brought up one case in which Judge Jackson gave an 18-year-old defendant in possession of what the government characterized as “an extremely large collection of child pornography” a prison sentence of just 3 months, when prosecutors asked for 24 months.

Hawley recited her own words back to her that took place during the sentencing in which Jackson said this “appeared to be a case” where the defendant was “fascinated by sexual images involving what were essentially your peers” and that the defendant was “merely trying to satisfy his curiosity” and “you were viewing sex acts between children who were not much younger than you.”

Hawley responded: “Judge, he was 18, these kids are 8. I don’t see in what sense they’re peers…. and that’s somehow a reason to only give him three months. Help me understand this.”

The confirmation hearings and questioning of Judge Jackson were still going on at 10 p.m. Tuesday and will resume on Wednesday morning.