- Gallup Poll finds 58% of Americans back Jackson’s nomination to the Supreme Court.
- Judge says life experiences would shape Supreme Court approach.
- Sen. Lindsey Graham reasserts grievance about treating of past nominees of GOP presidents.
- Jackson on child pornography offenses: “I know how serious this crime is.”
WASHINGTON – Judge Ketanji Brown Jackson explained her sentencing practices and her views on expanding the Supreme Court, among other topics, during a second day of questions from members of the Senate Judiciary Committee Wednesday, as hearings continue over her historic nomination to be the first Black woman on the Supreme Court.
Senators asked the judge about a wide range of topics Tuesday, including about her judicial philosophy, her faith, her work as a former federal public defender and sentences she handed down as a District Court judge in Washington.
Wednesday’s hearing began with two senators finishing up their first round of questions, before moving into a second round – slightly shorter – with questions from the committee’s 22 members.
Democrats are planning to finish the hearings on Thursday and hope to move Jackson to a final confirmation vote by early April.
Jackson’s first day:Jackson fights back against GOP criticism over sentencing, Gitmo
Jackson: Important to hear arguments
Responding to a question from Sen. Amy Klobuchar, D-Minn., about the court’s so-called shadow docket, Jackson said she believes it’s important to hear from the parties involved in a case.
“You make determinations based on arguments, and it’s important to do so,” Jackson said.
That rarely happens on the Supreme Court’s emergency docket because those cases usually must be decided before the court has a chance to hear arguments. Klobuchar noted the court handed down a new emergency decision on Wednesday as the hearing was underway, an unsigned opinion that will require Wisconsin courts to redraw their legislative boundaries.
More:U.S. Supreme Court throws out Wisconsin’s redistricting plan for legislative maps
In a separate case. the Supreme Court on Wednesday declined to block the state’s congressional maps.
The justices did not hear arguments in either case.
“There’s a need to balance getting full briefing with emergency circumstances,” Jackson said. “It’s also my understanding, from my time clerking on the court, that the court does recognize the value of allowing things to what we call ‘percolate,’ meaning lower courts (can) hear issues,” she said.
– John Fritze
Lee questions Jackson on personal court-packing opinion
Sen. Mike Lee, R-Utah, pressed Jackson on her personal view of court-packing.
“I understand that the canons of judicial ethics don’t allow you to comment on matters that might come before you; this is one that could not come before you as a justice,” Lee said.
Jackson in response reiterated her discomfort with providing her personal opinion in a professional capacity.
“I’m a human being and I have an opinion on a lot of things,” Jackson said. “The reason why, in my view, it is not appropriate for me to comment is because of my fidelity to the judicial role.
The Utah senator pushed back, noting again that the question of court-packing would not come before her (Congress would make the decision) and that he believes she could provide a “valuable” perspective because of her experience as a federal judge.
– Ella Lee
Cornyn hints at overturning Roe while questioning Jackson
GOP Sen. John Cornyn of Texas asked Jackson if she feels there’s any good reason for the Supreme Court not to overrule a previous decision or overturn precedent, hinting at a possible move to overturn Roe v. Wade.
“The Supreme Court has laid out factors beyond just the precedent being wrong as a reason to overturn it,” Jackson said.
“All precedence of the Supreme Court has to be respected,” she later added.
The senator then questioned Jackson on the medical meaning of “viability” and the number of weeks at which a fetus is viable, and Jackson said she hadn’t studied the specific issue.
“The Supreme Court has tests and standards that it has applied when it evaluates regulation of the right of a woman to terminate their pregnancy,” Jackson said. “The court has announced that there is a right to terminate up to the point of viability, subject to the framework in Roe and Casey, and there is a pending case right now that is addressing these issues.”
– Dylan Wells
Jackson: ‘I know how serious this crime is’
In one of the sharpest exchanges yet over the issue of Jackson’s sentencing decisions in child pornography cases, the judge noted that she sent every one of the defendants in question to jail and asserted she followed the sentencing process laid out by Congress.
“Every person in all of these charts and documents I sent to jail, because I know how serious this crime is,” Jackson said. “And on the other side of their terms of imprisonment, I ensured that they were facing lengthy periods of supervision and restrictions on their computer use so they could not do this sort of thing again.”
“That’s what Congress has required of judges,” she said. “And that’s what I did in every case.”
Jackson was responding to questions from Sen. Lindsey Graham, R-S.C., who said Jackson declined to consider sentencing “enhancements” in some of the cases that could have increased jail time.
“All I can say is that your view of how to deter child pornography is not my view,” Graham said. “I think you’re doing it wrong.”
The enhancements cited by Graham include considerations such as whether a computer was used to view or distribute the illicit images. Independent experts say that virtually all pornography is viewed electronically today and argue the consideration is years out of date.
More:A look at the child pornography cases at issue in Jackson’s Senate hearings
“She is currently not an outlier in sentencing,” Senate Judiciary Committee Chairman Dick Durbin, D-Ill., said. “Seventy percent of federal judges face the same dilemma and wonder why Congress has failed to act.”
–John Fritze
Graham: ‘Not about you’
Sen. Lindsey Graham, R-S.C., summed up what has been a central theme of the GOP’s response to Jackson’s nomination to the Supreme Court: Consternation about how previous nominees have been treated.
Graham and other senior Republicans on the committee have focused much attention on previous nominees, including Associate Justice Brett Kavanaugh and Judge Janice Rogers Brown, whose 2003 nomination by President George W. Bush to the U.S. Court of Appeals for the District of Columbia Circuit was stalled by Democrats for years.
“This is not of your making. So it’s really not about you,” Graham acknowledged before laying into how Democrats handled past nominees.
Graham returned to the theme at the end of his remarks.
“Did you watch the Kavanaugh hearings?” Graham asked Jackson. “How would you feel if we did that to you?”
After Jackson demurred, Graham complained he had only 20 minutes to make a point during the third day of hearings.
“She’s filibustered every question I have,” Graham said.
– John Fritze
Graham accuses Jackson of ‘activism’
Sen. Lindsey Graham, R-S.C., accused Jackson of “activism” in a high-profile immigration case that Republicans say shows she departed from the meaning of the text of federal laws passed by Congress.
Jackson rejected an effort by the Trump administration in 2019 to expand the number of immigrants who could be deported on an expedited basis. Her ruling against the Trump administration was overturned by the D.C. Circuit.
“That, to me, is Exhibit A of activism,” Graham charged. “You reached a conclusion because you disagree with the Trump administration.”
Jackson said she considered two statutes in the case, the one that Graham cited and another that dictates how federal agencies make regulatory decisions. She put additional weight on that second law.
“It doesn’t address the fact that Congress has another statute that is presumptively applied in agency cases to tell agencies how to exercise discretion,” Jackson said.
– John Fritze
Jackson says life experiences would shape Supreme Court approach
Asked about what kind of Supreme Court justice she would be if confirmed, Jackson returned to her experience growing up in Miami, Florida, and the civil rights movement that ended the segregation her parents endured and paved the path to her nomination to the high court.
She said she considered herself to be a “lucky inheritor of the civil rights dream,” noting that her confirmation hearing is “about the progress that we’ve made in this country in a very short period of time.”
Jackson said she would draw on her experience as a judge, public defender and member of the Sentencing Commission in addition to being a Black woman.
“I would do what I’ve done for the past decade, which is to rule from a position of neutrality,” she said. “To look carefully at the facts and the circumstances of every case without any agendas, without any attempt to push the law in one direction or the other…interpreting the law consistent with the Constitution and precedents and to render rulings that I believe and that I hope that people would have confidence in.”
–Courtney Subramanian
Gallup poll: 58% of Americans support confirming Jackson to the Supreme Court
Jackson maintains support from 58% of Americans in her nomination to the Supreme Court, a new Gallup poll found. The statistic ties as the highest Gallup has measured for any recent nominee.
The level of support for Jackson is only on par with Chief Justice John Roberts, who in 2005 received support from 59% of Americans, according to Gallup’s polling. Other nominees since the 1980s received support in the lower 50% or below.
Justices Brett Kavanaugh and Amy Coney Barrett – the two most recent nominees, whose hearings have been brought up throughout Jackson’s – received 41% and 51% of support, respectively.
When polled down party lines, Gallup found 88% of Democrats, 55% of independents and 31% of Republicans think the Senate should confirm Jackson to the nation’s highest court. The majority of Republicans, 55%, are opposed to her confirmation, according to the poll.
The poll was taken between March 1-18, before Jackson’s hearings began. President Joe Biden nominated her to the Supreme Court on Feb. 25.
– Ella Lee
Judiciary Committee announces witness list
The Senate Judiciary Committee released the list of witnesses who will provide testimony on Thursday, the last day of the hearing on Judge Ketanji Brown Jackson’s nomination to the Supreme Court.
Ann Claire Williams, D. Jean Veta, and Joseph M. Drayton of the American Bar Association will kick off the day. The second group of majority witnesses is made up of Democratic Rep. Joyce Beatty of Ohio, University of Virginia School of Law dean Risa Goluboff, the Leadership Conference on Civil and Human Rights president Wade Henderson, lawyer Richard B. Rosenthal, and National Organization of Black Law Enforcement Executives President Capt. Frederick Thomas.
On the minority side, the witnesses are Alabama state Attorney General Steve Marshall, The C. Boyden Gray Center for the Study of the Administrative State co-director Jennifer Mascott, anti-abortion activist Eleanor McCullen, First Liberty’s Keisha Russell and Operation Underground Railroad’s Alessandra Serano.
– Dylan Wells
Jackson adds to philosophy answer
Jackson offered additional context to her answer a day earlier about her judicial philosophy – and how she feels about the notion of originalism.
Originalism is the idea that the Constitution should be interpreted based on the meaning of the founding document’s words at the time they are written. Jackson had nodded to that theory several times Tuesday.
In response to a question from Durbin, Jackson on Wednesday said it is important to consider the original meaning but also to “analogize” to present day.
Durbin had framed his question in the context of the First Amendment’s freedom of press. How, Durbin asked as he held up a cellphone, should federal courts view the First Amendment ,given that technology has changed the way most Americans read their news today?
“When the court gets an issue that requires constitutional interpretation, it looks at the facts and circumstances of the particular case, and the text and principles of the Constitution in light of the times in which they were written, and analogizes to present day,” Jackson said.
Durbin said that when conservatives pledge themselves to originalism they “better have your mind open to the reality that this world is changing.”
– John Fritze
Jackson says she gave defendants their ‘day in court’ to support rehabilitation
In a line of questioning about Jackson’s sentencing habits, Sen. Thom Tillis, R-N.C., suggested that Jackson’s “level of empathy” toward defendants may be “beyond what some of us would be comfortable with” regarding justice administration. She argued in response that her decisions, particularly with explaining defendants’ actions to them, expands on a congressional framework that tells judges one of the purposes of punishment is rehabilitation.
“What I conveyed – or did when I was a trial judge – as I sentenced people to very lengthy periods of incarceration was, you are getting your day in court,” she said. “You are able to say what you want to say, but you have to sit here and listen to my reading into the record – the victim statements, in this case. You have to go away understanding that I am imposing consequences for your decision, your decision to engage in criminal behavior.”
She added that as a public defender, she found that many individuals were embittered by the criminal justice system, not encouraged to understand their wrongdoing.
“Nobody said to them, ‘Do you understand that there are children who will never have normal lives because you sold crack to their parece, and now they’re in a vortex of addiction? Do you understand that, Mr. Defendant?’” she said. “I was the one in my sentencing practices who explained those things in an interest of furthering Congress’ direction, that we’re supposed to be sentencing people so that they can ultimately be rehabilitated to the benefit of society as a whole.”
Tillis rebutted that “virtually half” of those individuals were reincarcerated within eight years before yielding his time.
– Ella Lee
Tillis rails against court packing
Sen. Thom Tillis, R-N.C., started his line of questioning by asking Jackson to describe the different sides of the debate over adding justices to the Supreme Court.
He then pivoted to discuss the “ecosystem” of groups supporting Jackson’s nomination, including Demand Justice, a left-leaning activist group that has called for adding at least four justices to the high court and eliminating the Senate’s 60-vote filibuster.
“We’re talking about the ultimate destruction of two institutions,” he said.
On court expansion:Supreme Court commission submits report to White House with no recommendation on ‘packing’
Jackson has avoided discussing her views on the subject and made clear in her exchanges with other GOP senators that she won’t wade into the issue of expanding the size of the nine-member Supreme Court.
Tillis did not ask her about the issue, but warned Jackson could see attempts to add more justices if she is confirmed.
– Phillip M. Bailey
A look at Jackson’s child porn sentences
Jackson has come under intense questioning at her confirmation hearing from some Republicans who accused her of being too lenient as a trial judge with sentences imposed in child pornography cases.
USA TODAY reviewed seven cases initially raised by Republicans. Among the findings: Jackson’s sentences were above the punishment recommended by the Probation Office in two of the cases and Jackson issued the same sentence recommended by that office in three cases.
Largely missing from the hearings so far has been extensive background on the cases in question. Here are summaries of the cases reviewed by USA TODAY.
– Kevin McCoy and John Fritze
Grassley spurns Democrats on information access regarding Jackson’s sentencing records
Ranking member Sen. Chuck Grassley, R-Iowa, rebuffed Democrats for purportedly withholding information on data related to probation officer recommendations.
Democrats on Tuesday used a chart on probation officer recommendations to refute a line of questioning by Sen. Josh Hawley, R-Mo., regarding Jackson’s sentencing on child sex crimes, NBC News reported. Republicans claimed that information was being intentionally withheld, though Democrats said the documents were provided by the White House that morning and Durbin claimed “everyone had access to if they wanted it.”
“No one on our side of the aisle had access to this information,” Grassley said. “In fact, before this past week, I’m not sure anyone but the probation office and the court had access to this information.”
He asked for more transparency and to add his name to letters from Sens. Mike Lee, R-Utah, and Ted Cruz, R-Texas, requesting additional information on the data.
Despite that, he also complimented the committee’s Democrats for exercising “grace and dignity” throughout Jackson’s hearing, drawing a negative comparison to now-Supreme Court Justice Brett Kavanaugh’s hearings.
– Ella Lee
Ossoff questions Jackson about ‘presidents are not kings’ decision
Democratic Sen. Jon Ossoff of Georgia asked Jackson about a 2019 decision on presidential power over House Democrats’ effort to subpoena former White House counsel Don McGahn.
“You, in an opinion that has been widely cited, made the observation that presidents are not kings. What does that mean?” asked Ossoff.
“The framers decided, after experiencing monarchy, tyranny and the like, that they were going to create a government that would split the powers of a monarch in several different ways,” responded Jackson.
“The separation of powers is crucial to liberty, it is what our country is founded on, and it’s important as consistent with my judicial methodology for each branch to operate within their own sphere. That means for me that judges can’t make law, judges shouldn’t be policymakers,” she added.
Ossoff kicked off Wednesday’s questioning. Because Tuesday’s hearing ran long, he and GOP Sen. Thom Tillis of North Carolina will each conduct their first round of questioning before the committee members each have an opportunity to ask a second round of questions. Ossoff’s Georgia colleague, Democratic Sen. Raphael Warnock, was in the room watching the proceedings during Ossoff’s questioning, and Ossoff acknowledged him at the top of his remarks.
– Dylan Wells
Cornyn accuses Durbin of editorializing hearing
Sen. John Cornyn, R-Texas, interrupted an opening statement from ranking member Sen. Chuck Grassley, R-Iowa, to complain of Durbin’s apparent fact-check on his line of questioning Tuesday about whether Jackson ever referred to former President George Bush and Defense Secretary Donald Rumsfeld as “war criminals” in legal filings.
Cornyn said after Republicans questioned Jackson, Durbin chose “to editorialize and contradict the points being made by the side of the aisle.”
Durbin later offered new research showing she never referred to the pair as “war criminals,” pointing out that she was advocating on behalf of clients who raised claims of torture.
“I don’t think it’s appropriate for the chairman, after every time somebody on this side of the aisle ask questions of the judge, you come back and you denigrate, and you attack and you criticize the line of questioning,” Cornyn said, adding Jackson is doing a “pretty good job” defending herself.
Durbin defended his actions by noting he was observing “chairman’s time,” a tradition in the Judiciary Committee exercised by former chairmen, including Sen. Lindsey Graham, R-S.C.
“In the minority, we waited through chairman’s time when we had Republican chairs,” Durbin said. “There will not be a separate set of rules for Democrats in control of this committee.”
– Courtney Subramanian
Durbin: Some Republicans playing politics
Senate Judiciary Chairman Dick Durbin, D-Ill., kicked off Jackson’s hearing Wednesday by playing some defense over charges that the judge was too lenient on sentences in child pornography cases.
Durbin said the 13-hour hearing turned into a “testing ground for conspiracy theories and culture war theories.”
“It is difficult if not impossible to put ourselves in your place,” Durbin said. “You’re in the mainstream of sentencing when it comes to child pornography cases.”
Durbin chalked the exchanges with some senators up to politics, asserting that “yesterday was an opportunity to showcase talking points for the November election.”
– John Fritze
Those 7 child porn cases:A look at the child pornography cases at issue in Ketanji Brown Jackson’s Senate hearings
Romney: ‘No there, there.’
At least one key Republican senator isn’t buying the criticism of Judge Ketanji Brown Jackson’s record on sentencing in child pornography cases: Sen. Mitt Romney of Utah.
“It struck me that it was off course, meaning the attacks were off course that came from some,” Romney told The Washington Post on Tuesday. “And there is no there, there.”
That’s significant because Romney is one of a handful of GOP senators who could potentially vote for Jackson.
– John Fritze
Sentencing likely to reappear
Particularly toward the end of Tuesday’s hearing, Republicans peppered Jackson with questions about sentences she handed down as a federal trial court judge. Those inquiries were focused on seven cases involving what’s known as “non-production” child pornography offenses, in other words possessing or distributing the material.
Sen. Josh Hawley, R-Mo., has led the charge on the issue, despite pushback from Democrats, the White House and some independent experts who note that the U.S. Sentencing Commission itself reports that the majority of the child pornography offenses at issue result in sentences that are below the federal guidelines – which are advisory.
Working mom:Jackson’s comments on motherhood, her husband’s tears and other moments
Speaking to reporters Tuesday, Hawley said he hadn’t yet decided what questions he would ask during his second round. Given his focus on the issue so far, it seemed certain that he would raise it again Wednesday, perhaps focusing on transcripts from court proceedings Jackson held in the cases.
“Those were tough questions,” Hawley acknowledged. “I asked her and I thought she handled them well.”
But Hawley indicated he wasn’t convinced by Jackson’s answers.
“Her argument to me was, ‘Hey, this is tough, but I’m doing the best I can.’ And my argument to her was, ‘I don’t agree with your judgment,'” Hawley said. “That’s just a professional disagreement.”
But Senate Judiciary Committee Dick Durbin, D-Ill., said the issues Hawley was raising were at least partly the fault of Congress for not stepping in to update the guidelines.
“This is an extraordinary challenge to every judge because Congress won’t touch this hot-button issue,” Durbin said late Tuesday. “Judges are stuck.”
– John Fritze
Plan for Day 3
After a marathon 13-hour session Tuesday, the Senate Judiciary Committee was angling for a shorter – slightly shorter – round of questions in the third day of hearings.
To start with, because Tuesday’s hearing went so long, two members of the committee couldn’t squeeze in their first round of questions: Sens. Thom Tillis, R-N.C., and Jon Ossoff, D-Ga. They’ll start off the hearings Wednesday and will get 30 minutes each.
Then the rest of the committee will get a second round of questions, at 20 minutes each.
“I’m going to land this plane,” Sen. John Kennedy, R-La., quipped as he ended his questioning late Tuesday. “We’ll take off again tomorrow.”
The senators will also meet in a closed session to discuss Jackson’s FBI background investigation, a standard procedure for every Supreme Court nominee.
The hearings are supposed to conclude Thursday with testimony from outside groups, such as the American Bar Association.
– John Fritze
How many days will confirmation hearings last?
The Judiciary Committee’s hearings last four days total, with two days of direct questioning of Jackson.
On the final day – Thursday – the committee will hear testimony from the American Bar Association and other outside witnesses. They will have five minutes each for statements, and question rounds will also be five minutes.