The Confirmation Hearing of Ketanji Brown Jackson

From The New York Times, I’m Michael Barbaro. This is The Daily.

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Today:

— what we’ve learned so far from the confirmation hearings of President Biden’s first nominee to the Supreme Court, Judge Ketanji Brown Jackson. I spoke with my colleague, Adam Liptak, about four key moments.

It’s Wednesday, March 23.

Adam, we are talking to you at a little after 6 p.m. on the second day of the confirmation hearings for Judge Ketanji Brown Jackson. And just to set the stage heading into these hearings, Democratic support for Judge Jackson has not seemed in doubt. It is sufficient, we believe, to very narrowly confirm her.

And so the real question is the depth of opposition from Senate Republicans, what arguments they’d make against her, and whether those arguments might endanger her Democratic support. And so that’s the prism through which we want to examine a few key moments from these hearings. And I think we should start with Judge Jackson’s opening statement, where she really has a chance to frame her story. So let’s do that.

Well, Michael, nobody doubts — and this includes Republicans — that Judge Jackson’s story, her life story, is inspirational and could really only have happened in the last few decades.

She was born not long after the civil rights movement, achieved tremendous gains and transformed American society.

And she was able to go, as her parents were not, to an unsegregated public school.

She recounted vivid memories of, for instance, her father, a public school teacher, studying to become a lawyer, and the two of them sitting together — the father with a stack of law books and the daughter with a stack of coloring books.

She also spoke about the tradition of public service in her family.

Her brother, two of her uncles, served as law enforcement officers. After the September 11 attacks, her younger brother signed up for the military and served two tours of duty in the Middle East. And she herself goes to Harvard College and Harvard Law School and clerks for three different federal judges, including Justice Stephen Breyer, whom she hopes to replace.

So there’s really no question that her life story is emblematic of the progress of American society. And I don’t think, at least on biographical grounds, there’s any reason to think that she didn’t charm all of the senators.

OK, so let’s turn to the next big moment in these hearings, which was an exchange where Judge Jackson is asked by Republican Senator Chuck Grassley of Iowa, the ranking Republican on the Senate Judiciary Committee, to really explain her judicial philosophy, which is a key question for Republicans about her. And what they really seemed to be trying to get at is, how do you apply the law?

How do you interpret the Constitution, and really, just how liberal a judge are you? So walk us through that exchange.

Well, the answers she gave would be ones you would think the Republicans would like — that she’s closely focused on the relevant text, whether it’s the Constitution or a statute.

That she doesn’t believe in a living Constitution.

Can you explain that phrase, “living Constitution,” and what it would mean to someone like Chuck Grassley to ask her about it, and what would it mean for her to have said, I don’t believe in that concept?

So I guess the most extreme version of a living Constitution would allow judges to infuse the constitutional text with whatever they believed was the appropriate answer, given contemporary circumstances to any particular legal question. I think that’s a little bit of a caricature.

Probably closer to the reality of what a sympathetic version of a living Constitution would mean is that the founders used general phrases in the Constitution — the freedom of the press, equal protection of the laws, and so on — in order to let succeeding generations fill that with meaning relevant to contemporary circumstances. But most conservatives would adopt the Antonin Scalia version of the Constitution when he would say it’s not living. It’s dead, dead, dead.

Right.

And that all that matters is how it was understood when it was adopted and ratified.

And her version of her judicial philosophy was much closer to the Scalia version. And her explicit rejection of a living Constitution approach should have heartened Republicans.

Right, this is, in many ways, the language we associate with the Republican-appointed justices on the Supreme Court. So it felt a little unexpected out of the mouth of a Democratic nominee from President Biden.

Yeah, I suppose. Although many liberal scholars and judges now use these tools, these interpretive methods — originalism and textualism — to reach liberal results. So on the one hand, it tells the Republican senators what they want to hear.

Right.

On the other hand, they know and we know it doesn’t actually predict what kind of justice she’s going to be.

So you’re saying Republicans might appreciate this language from Judge Jackson, but they aren’t necessarily buying it. And they’re very eager to poke holes in it. And that’s exactly what happens next, of course, Adam. We saw, in several exchanges, Republicans attempting to portray Judge Jackson as left-leaning, as, in some cases, radical. And the first of these exchanges came under questioning from Senator Lindsey Graham of South Carolina. So walk us through that.

Senator Lindsey Graham asked her about her representation of detainees at Guantanamo Bay, Cuba —

— where after the September 11 attacks, the United States sent people they considered terrorists or enemy combatants and where they’ve been held, some of them, now for two decades.

Explain why Judge Jackson ever came to represent people at Guantanamo Bay. What was happening in her career?

She was a federal public defender. She was an appellate lawyer, an assistant federal public defender. And there came a time when the Supreme Court said that detainees could file petitions for habeas corpus, petitions seeking to be released. And she filed a series of those. And Senator Graham said, on the one hand, everyone deserves a lawyer.

But on the other hand, he seemed to take offense to some of what he characterized as the arguments she made.

And what were the arguments he found offensive?

He said that she had accused the government of being a war criminal. And that’s a very loose interpretation of the language of the legal filings that she had submitted.

Apparently, she said that torturing detainees — and there’s significant evidence that there was such torture — amounts to a war crime. She didn’t associate that concept with anyone in particular.

Right, so she never called anyone war criminals.

That’s right.

So this was Senator Graham, who is himself a former military lawyer, maybe engaging in a little legal argument that doesn’t hew entirely closely to the facts.

So what Graham is really up to here, just to summarize this, is, he’s trying to portray Judge Jackson as overzealous in her defense of these detainees, who he sees as a threat to the U.S. And he’s trying to portray her as antagonistic to the U.S. government at a time of war. And her reply is, look, as a lawyer, my job is to defend my client, no matter who that client is, because everybody is entitled to a legal defense in the American justice system.

Yeah, that’s a fair characterization of it. I don’t know that it got all that much traction from his Republican colleagues. But it was one of several lines of attack in which Judge Jackson was portrayed by Republicans as siding with the wrong people.

We’ll be right back.

Adam, the next moment we want to talk about feels very related to the exchange that we just discussed. Senator Graham had attempted to portray Judge Jackson as sympathetic to terrorists, and not long after —

— a fellow Republican senator, Ted Cruz of Texas, attempts to portray Judge Jackson as overly sympathetic to people who possess child sexual imagery, imagery of child sexual abuse. So talk us through that exchange.

So Senator Cruz makes the case —

— in which he said that Judge Jackson, in sentencing people convicted of these terrible crimes, went too light on them.

And he had charts and graphs —

— and examples and percentages.

And how does she respond to that, Adam?

She’s not impressed by his chart.

She says it doesn’t include all the factors that judges should consider.

Federal sentencing law is very complicated, and you can slice it and dice it a number of different ways. But sentencing experts seem to agree, more or less, on the following: that these sentencing guidelines, which are advisory and discretionary, are, by all accounts, very harsh in this area, so much so that prosecutors often asks for substantially lighter sentences than the guidelines call for.

And the evidence seems to be that she is completely in line with what other judges in D.C., where she served as a trial judge, and across the nation are doing. But I don’t want to suggest that her answer here is only technical.

She became quite impassioned earlier in the hearing in describing the terrible harm that these images do, that people subjected to them have lifelong trauma.

So her larger point was to reject completely and emphatically the idea that she is soft on this kind of crime.

And why did this series of exchanges on this subject matter?

Well, I guess if you had to think about who are the people that the American public are least likely to be sympathetic to, you might start with terrorists and then go on to people complicit in child sexual abuse.

Right.

So if nothing else, political hardball, but it also gave us an opportunity to look at Judge Jackson under pressure. And she was throughout composed and forceful.

Mm-hmm. Adam, our colleagues have reported that Republicans have really struggled with whether or how to engage the question of race in these hearings, either by talking about it or talking around it, given that Judge Jackson is the first Black woman to be nominated to the Supreme Court, and that they’re trying to block her. So how do you think ultimately the Republicans chose to handle that subject?

Well, they talked about race in one context —

— which is critical race theory.

Which was a legal movement that Ted Cruz discussed with Judge Jackson. They had been at Harvard Law School at the same time. And in law schools, critical race theory did play a role in some amount of legal thinking.

Judge Jackson said that she never studied it and certainly never used it in her jurisprudence. And she says it doesn’t come up in the work that I do as a judge.

And then noting that Judge Jackson sits on the board of a private school in Washington —

— he started showing her a number of books he said were in the curriculum at the school, including one called “Anti-Racist Baby.”

What exactly is Cruze up to here? What is this about?

Well, basically, what I think is going on with several of these lines of questioning from Republicans is that you need a reason to vote against the first Black woman to serve on the Supreme Court. And you need to have something to say when you cast that vote. And so it seems to be an effort to try to find something that will sell to at least your constituents that she likes terrorists, that she’s soft on people involved in child sexual abuse, that she endorses racist baby books in private schools. And whatever force these critiques have, their real purpose seems to be to provide a rationale for a vote against Judge Jackson.

Right, because as you said, Adam, her judicial philosophy would not alone seem sufficient for many of these Republicans to vote no. But you’re saying in these narrow lines of attack, they’re finding their reason to vote against her.

Yeah, that’s right. She’s a conventional judge. She’s a mainstream judge. Her description of how she goes about doing her judicial job ought to be attractive to Republicans. Her description of her judicial philosophy ought to be attractive to Republicans. So if that’s all they had to work with, it would be very hard to justify a vote against her. So you need a different, better and apparently more colorful reason.

So, Adam, as we wrap up here, where have these last two days of confirmation hearings left Judge Jackson’s nomination?

There’s every reason to think that she’s going to be confirmed. There’s little reason to think that she is going to attract many, if any, Republican votes. When she was confirmed last year to the federal appeals court in Washington, she got the votes of Senators Graham, Collins and Murkowski. The Graham vote on the evidence of Tuesday’s hearing seems to be off the table. But it doesn’t matter if she gets no Republican support because if the 50 Democrats hang together — and there’s every reason to think they will — aided by the tie breaking vote of Vice President Harris, she’ll get on the Supreme Court.

The significance of that was not lost on Judge Jackson —

— who talked candidly about the history that had gone into her ability to even have a shot at the job, and the fact that if confirmed, she’ll serve as a role model for many people, but among them, young Black girls who may not have envisioned this as a possibility.

Well, Adam, as always, thank you very much.

Thank you, Michael.

The confirmation hearings for Judge Jackson will resume this morning. A full Senate vote on her nomination is expected by mid-April.

We’ll be right back.

Here’s what else you need to know today. Ukrainian forces claimed an important victory on Tuesday, saying they had retaken a key town from Russian troops called Makariv, about 40 miles west of Kyiv. Meanwhile, in Russia, President Putin intensified his crackdown on dissent against the war. Courts under Putin’s control sentenced his leading political opponent, Alexei Navalny, to an additional nine years in prison on the charge of fraud on top of the 2 and 1/2 year sentence Navalny is already serving. In letters from jail, Navalny has been urging Russians to protest the war in Ukraine.

And Chinese authorities say they have found no survivors from the crash of a Boeing-made passenger plane flown by China Eastern Airlines that was carrying 132 people across Southern China. On Monday, the plane plummeted more than 20,000 feet in about a minute, briefly regained altitude then plunged again to the ground. So far, the cause of the crash is unknown.

Today’s episode was produced by Rachel Quester, Diana Nguyen and Mooj Zadie. It was edited by John Ketchum and M.J Davis Lin; contains original music from Marion Lozano; and was engineered by Chris Wood. Our theme music is by Jim Brunberg and Ben Landsverk of Wonderly.

That’s it for The Daily. I’m Michael Barbaro. See you tomorrow.