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
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
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.
“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.”
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.”
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
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.
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.