'Anything can happen': What to watch for in Supreme Court nominee Ketanji Brown Jackson's hearing
A number of sharp questions have already emerged about the 51-year-old jurist. And the four-day hearing will be the country's introduction to Jackson, a Harvard-educated federal appeals court judge.
WASHINGTON – Even Republicans acknowledge President Joe Biden’s nominee to the Supreme Court, Judge Ketanji Brown Jackson, appears to be on a glide path to confirmation.
For millions of Americans, the four-day spectacle will be an introduction to Jackson, a Harvard-educated federal appeals court judge and the first Black woman named to the Supreme Court. The hearings will be an examination of her record and an effort to predict what kind of justice she would be if confirmed for a lifetime appointment on a court that is wrestling with issues such as abortion, voting rights, guns and climate change.
Given the historic significance of Jackson’s nomination, the fact that Democrats control the Senate and that the conservatives' 6-3 advantage on the court wouldn't change if she’s confirmed, many predict a less contentious fight than some of the court’s current justices faced. Republicans have repeatedly said they're not interested in making a scene.
'I'll show them':Ketanji Brown Jackson in her own words
"Anything can happen, but for right now, going into it, it does seem to be particularly sedate," said Barbara Perry, director of presidential studies at the University of Virginia's Miller Center, who has written extensively on the Supreme Court. "It'll be a lot of huffing and puffing about what in the end will be, probably, a positive vote for Judge Jackson."
On the other hand, sharp questions have emerged about the 51-year-old jurist, who would replace retiring Associate Justice Stephen Breyer. Some critics said her short tenure on the U.S. Court of Appeals for the D.C. Circuit has made it difficult to determine how she thinks about the Constitution. Others pointed to her criminal defense work, including her advocacy for a Guantanamo Bay detainee.
Unpredictability is a regular feature of the hearings and the process generally. Associate Justice Clarence Thomas sailed through his hearings and was poised for swift confirmation in 1991 when allegations surfaced that he sexually harassed a former co-worker – an accusation he denied but that nearly tanked his confirmation.
A similar drama unfolded in the hearings for Associate Justice Brett Kavanaugh in 2018 when allegations of decades-old sexual misconduct were made public. Kavanaugh denied those allegations and was narrowly confirmed.
Part of what may drive acrimony, if it develops: Several Republicans on the committee are kicking the tires on a 2024 presidential campaign. They’ll seek a moment that cuts through the noise and raises their profile. Democrats, including then-Sen. Kamala Harris, were in the same position with Kavanaugh four years ago and Associate Justice Amy Coney Barrett in 2020.
None of the criticism of Jackson is likely to derail her confirmation, said John Malcolm, vice president of the conservative Heritage Foundation. Republicans will nevertheless want to highlight Jackson’s rulings – including those that sided with labor unions or against President Donald Trump – to draw contrasts with Biden.
"They're going to want to portray themselves as fighting the Biden agenda," Malcolm said. "Republicans will point out, quite rightly, that when you have a Democrat in the White House and a Democrat-controlled Senate, this is the ... nominee that you get."
In the days leading up to the hearing, Republicans slammed Jackson’s work as a federal public defender, including her advocacy for a Guantanamo Bay detainee. The Republican National Committee accused her of "defending terrorists" in a background document sent to journalists shortly after she was named for the job.
The criticism is based on Jackson's representation of Khi Ali Gul, an Afghan man held at the U.S. detention facility for enemy combatants at Guantanamo Bay in Cuba. She came to the case after a landmark Supreme Court ruling allowed federal courts to consider habeas corpus petitions in which the alleged terrorists challenged the legality of their detentions. A.J. Kramer, the U.S. public defender for the District of Columbia then and now, told USA TODAY he assigned the case to Jackson because she was "a very bright lawyer."
Gul's appeal was bogged down in the federal court system, and Jackson withdrew in late 2008 before its resolution. The Obama administration released him in 2014.
White House officials noted Jackson's connections to law enforcement, including several members of her family who were police officers. White House spokesman Andrew Bates said it was "fundamental under the Constitution that every American has the right to a defense and that no one can be sentenced without due process."
Jackson joined a private law firm and took on a pro bono case focused on the detention of Ali Saleh Kahlah al-Marri, a Qatar national who came to the USA legally in 2001. After being charged with credit card fraud, President George W. Bush’s administration asserted al-Marri conspired to support al-Qaida, designated him an enemy combatant – one of the few U.S. residents so classified – and transferred him to a naval brig in South Carolina.
Jackson didn't represent al-Marri, but she filed two friend of the court briefs. In one, she represented 20 former federal judges who asserted the panels that handled the cases against suspects designated as enemy combatants lacked the ability to determine whether the evidence was based on information extracted by torture.
In another, she filed a brief on behalf of the Cato Institute, a libertarian organization dedicated to limited government, and two other groups.
Jackson, referring to al-Marri, wrote that the federal government lacked constitutional authority to "use the military to detain, without charge or trial, persons who are lawfully in the United States."
Lawrence Lustberg, a former attorney for al-Marri, said Jackson "had absolutely no involvement in representing Mr. al-Marri."
The brief "made the undeniable point that allowing the president to use the military to detain indefinitely individuals residing in the United States without charge or trial threatens the constitutionally protected liberty of every person lawfully in the country, including American citizens,” said Jonathan Hafetz, another former al-Marri attorney.
Al-Marri pleaded guilty to one count of conspiracy to provide material support to al-Qaida. He was released from prison in January 2015.
Child pornography sentencing
A new line of attack emerged last week guaranteed to come up at the hearing: Jackson critics said that as a U.S. District Court judge, she was soft on child pornography offenses.
A series of tweets by Sen. Josh Hawley, R-Mo., highlighted seven cases in which Jackson imposed sentences for offenders who possessed child pornography that were lower than what guidelines set by the U.S. Sentencing Commission call for.
Experts said Hawley's assertions miss important context, including that the majority of child pornography offenders in cases where a defendant did not produce the material receive sentences below federal guidelines. Other judges, including one nominated by a Republican president, have questioned the guidelines in open court.
White House press secretary Jen Psaki said the sentences Jackson imposed were consistent with or above what was requested by the U.S. Probation Office.
"I don't think there is anyone who has spent more than a minimal amount of time looking into this issue who doesn't realize that there's a pretty big problem with the child pornography laws in the federal system," said Carissa Byrne-Hessick, a University of North Carolina law professor who has studied the issue.
Byrne-Hessick said overlapping federal laws offer different sentencing arrangements for possession of child pornography and receipt of that material. Given that most offenders “receive” the material over the internet, it's a distinction without much substance – but the difference in sentencing can be significant.
Bates, the White House spokesman, called the criticism "toxic and weakly presented misinformation that relies on taking cherry-picked elements of her record out of context."
Hawley and other Republicans said it underscores what they view as another important issue: a request for additional documents from Jackson's tenure on the Sentencing Commission from 2010 to 2014. Sen. Chuck Grassley, R-Iowa, requested those documents, but they are unlikely to make their way to the committee before the confirmation hearings.
Grassley said Friday that Jackson's record "raises legitimate questions about her views on penalties for these crimes" and that's part of the reason he seeks the records.
"These are not personal attacks on Judge Jackson. This is her public record,” said Mike Davis, president of the Article III Project, a group that strategizes with Republicans on judicial confirmations. "This is important ... because it shows that Judge Jackson is outside the judicial mainstream on key issues."
Harvard and affirmative action
Having Harvard University on a résumé is generally a plus. But Jackson, who earned her undergraduate and law degrees from Harvard, has run into fire over another association she has with the venerable institution: her role on its board of overseers.
A blockbuster case challenging the use of race in admissions at Harvard and the University of North Carolina is pending at the Supreme Court. The justices agreed in January to hear it, setting up oral arguments this fall. Republican senators told The Washington Post this month that Jackson should recuse from the matter.
Jackson has served on the board since 2016, and her term expires this spring. Doug Jones, a former Alabama Democratic senator who is helping guide Jackson through the confirmation process, said the request for her to recuse is a "question that she'll answer once she gets at the confirmation hearings."
Affirmative action:Supreme Court to consider use of race in college admissions
Harvard has acknowledged considering race in its admissions process but said it does so as one of several factors – an approach that is consistent with the legal standard. Though the board of overseers is not involved with admissions, it’s not clear what role, if any, it has in the admissions policy.
Harvard declined to comment.
Jackson told senators in written testimony that she had recused herself from 12 cases while sitting on the District Court in Washington. One was related to her husband’s work as a surgeon, and two involved her husband’s brother, who is an attorney. Other recusals were for “personal or familial” connections to the cases, she said.
Justices recuse themselves for previous work on cases, familial ties or stock ownership, though they rarely explain their reason for not participating in a case. Court watchdog groups said the recusal process is murky and not well enforced.
In part because Jackson has sat on the U.S. Court of Appeals for the D.C. Circuit for less than a year, pinning down her approach to interpreting the Constitution is tricky. It's an issue Republican senators raised at her confirmation hearing last year for the appeals court – and experts predict it will come up again this week.
One common judicial philosophy among conservatives on the court is originalism, the notion that when the words of the founding document are not explicit, they should be interpreted based on the meaning they would have had for the framers themselves. Another approach holds that judges can take into account the purpose of words and phrases and the consequences of ruling one way or the other.
Jackson has said she doesn’t belong to either camp.
"I do not have a judicial philosophy, per se, other than to apply the same method of thorough analysis to every case, regardless of the parties," she told senators last year.
"I’m personally either surprised or troubled by the fact that she has never talked about her judicial philosophy," Malcolm said. "The thought that somebody could graduate from Harvard Law School, clerk for three federal judges … and be a judge now for nine years and not have a judicial philosophy, per se – it strains credulity."
Although a justice's judicial philosophy is important, it is often hard to pin down in the fast-paced, televised setting of a confirmation hearing. Terms such as "originalism" and "living Constitution" are not well-known by most Americans – even the justices debate their meaning – and history has made clear that justices can change.
More often than not, nominees respond to questions about judicial philosophy with vague answers about calling "balls and strikes" that don't provide much clarity.
Michael Waldman, president of the Brennan Center for Justice at New York University, said the judicial philosophy questions provide limited insight. There's no reason to think, he said, that Jackson would be outside the mainstream.
"If she follows Breyer, she will be pragmatic and focused on how the law really works, as opposed to abstractions," Waldman said.
‘Dark money’ support
Like other nominees, Jackson will probably face questions about support from advocacy groups that do not disclose their funding sources. It was an issue Republicans raised when Jackson was confirmed for the D.C. Circuit, and Democrats have long hounded nominees of Republican presidents over the same issue.
Days after Breyer announced his retirement, a conservative group began airing a TV ad decrying "secret money from liberals" it claimed is influencing the process.
Dark money groups, usually nonprofits, raise and spend money to influence public policy debates. Unlike political campaigns and other entities that engage in advocacy relating to elections, the groups are generally not required to disclose their donors or comply in other ways with federal campaign finance laws.
One of the left-leaning groups frequently targeted by the right is Demand Justice, which in 2020 committed to spend $10 million to block Trump's nominee to replace Associate Justice Ruth Bader Ginsburg until after the inauguration. The group has promoted Jackson for more than a year – and it announced in February it would launch a $1 million ad campaign to support her. Jackson has no connection to the group.
The group has advocated for increasing the number of justices on the Supreme Court, an idea that picked up steam with liberals after Trump landed three justices on the high court. Biden has not embraced the idea. Senators are likely to ask Jackson for her views on "court-packing," and she is likely to give an answer that will satisfy no one.
“As a sitting federal judge, I am bound by the Supreme Court’s precedents, regardless of that court’s size or composition,” Jackson told senators about expanding the court last year. "It would be inappropriate for me to comment."