Judicial philosophy to child porn sentencing: Key takeaways from Ketanji Brown Jackson's Supreme Court hearings
If confirmed, Jackson would be the sixth woman seated on the nation's highest court. And her addition would mark the first time that four women serve together on the nine-member court.
WASHINGTON – After a marathon four days of Senate hearings to consider Judge Ketanji Brown Jackson's nomination to the Supreme Court, even some of her Republican critics acknowledged that she's cruising to confirmation as the first Black woman to sit on the high court in the nation's history.
As she peppered Jackson with questions on abortion, Sen. Marsha Blackburn, R-Tenn., noted the judge might not have an impact on the issue – not because she wouldn't get the job but because the court is set to weigh in before Jackson would be seated.
"That is an issue that will be decided before you go to the court,” Blackburn said.
Jackson, who serves on the U.S. Court of Appeals for the D.C. Circuit, used the hearings tocast herself as an independent jurist who remains committed to the constitutional "constraints" on her authority and who would work to restore public trust in the high court.
"One of the reasons why having a diverse judicial branch is important is because it lends and bolsters public confidence in our system," she told the Senate Judiciary Committee. "We have a diverse society in the United States. There are people from all over who come to this great nation and make their lives.”
Aside from some sharp exchanges with Republican senators, Jackson appeared to avoid any mistakes that would alter her path to confirmation before Easter. Democrats, who narrowly control the Senate, are likely to back Jackson, and they could rely on Vice President Kamala Harris to cast a tiebreaking vote on her historic nomination if she received no GOP support.
Jackson would be the sixth woman seated on the nation's highest court. She would join Associate Justices Sonia Sotomayor, Elena Kagan and Amy Coney Barrett – marking the first time four women serve together on the nine-member court.
Here are eight takeaways from Jackson's Supreme Court confirmation hearings this week:
Recusal in Harvard affirmative action case
Jackson said she would recuse herself in a case before the court about the use of race in admissions at Harvard University.
Jackson, who earned her undergraduate and law degrees from Harvard and sits on the university's board of overseers, faced GOP calls for recusal before her hearings began. Though the board is not directly involved with admissions, it's not clear whether it has a hand in the policy at issue in the Supreme Court case.
Justices typically recuse themselves because of previous work on cases, familial ties or stock ownership, though they rarely explain their reason for not participating. Court watchdog groups said the recusal process is murky and not well enforced.
Asked by Sen. Ted Cruz, R-Texas, if she would recuse herself, Jackson said, "That is my plan, senator."
The court’s sitting justices agreed in January to hear cases about whether the use of race in the admissions processes at Harvard and the University of North Carolina violated civil rights laws and the Constitution, setting up arguments for this fall.
Jackson hinted several times throughout the hearings at her view on originalism, the idea that the Constitution should be interpreted based on the meaning of the founding document’s words at the time they were written and ratified.
The judge said 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."
That gave conservatives, who are more likely to embrace originalism, reason to cheer. But Jackson offered context when she was asked a question on how federal courts view the First Amendment since technology has changed the way most Americans consume news: She said she felt it is important to consider the original meaning and to “analogize” to the present day.
Jackson sought to highlight her record as an independent jurist, pointing out decisions in which she agreed with the Trump administration and conservatives.
Notable rulings:Review of Jackson's opinions shows outcomes cut both ways
“My approach all the way through is one that I believe is required by my duties, by my oath, as a judge,” Jackson said of her decision-making process. “We rule without fear or favor. We are independent as judges in our responsibilities.”
Defending public defenders
Republicans tried to brand Jackson as an "activist" judge who is soft on crime in part because of her time as a federal public defender. If confirmed, Jackson would be the first Supreme Court justice whose résumé includes time as a public defender.
Jackson and Democrats pushed back by noting she was representing clients, not espousing her own views in court filings. She called attention to her brother and two uncles, who served as police officers, saying her family ties to law enforcement informed how she viewed the effects of crime on a community and the need for police. They "are not abstract concepts or political slogans to me," she said.
Sen. Tom Cotton, R-Ark., a potential 2024 presidential contender, asked Jackson a series of questions about whether she thought too many violent criminals were captured or if the USA needs more or fewer police.
Jackson said those were "policy questions" for Congress and not appropriate for a judge.
“It’s not that they're difficult questions,” she said. “It's that they're not questions for me.”
Child pornography sentences
Throughout the hearings, Republicans highlighted sentences Jackson handed down in child pornography cases while she was on the U.S. District Court in Washington. Sens. Josh Hawley, R-Mo., and Ted Cruz, R-Texas, noted her sentences were lighter than federal guidelines and requests from prosecutors in about a half-dozen cases.
Jackson dismissed the criticism, declaring that “as a mother, cases involving sex crimes against children are harrowing.”
She said judges consider many factors beyond sentencing guidelines when imposing punishment, including prosecution and defense recommendations, information about the defendants and U.S. Probation Office recommendations.
During a sharp exchange with Sen. Lindsey Graham, R-S.C., Jackson defended her handling of child porn cases and reiterated that Congress often sets sentencing ranges for federal crimes and the U.S. Sentencing Commission comes up with nonmandatory guidelines within those ranges.
“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."
Defense of Guantanamo Bay detainees
Jackson defended her representation of Guantanamo Bay detainees after the Sept. 11 attacks.
She argued that as a federal public defender, she didn't pick her clients but was committed to "standing up for the constitutional value of representation." She continued to advocate for one detainee as a private attorney when she filed friend-of-the-court briefs on behalf of outside organizations.
“We couldn’t let the terrorists win by changing who we were fundamentally, and what that meant was that the people who were accused by our government of having engaged in actions related to this, under our constitutional scheme, were entitled to representation – are entitled to be treated fairly,” she said. “That’s what makes our system the best in the world.”
Jackson declined to get into a debate over expanding the number of justices on the nine-member Supreme Court, an idea raised by liberal Democrats seeking to alter the high court's conservative 6-3 majority.
Sen. Chuck Grassley, R-Iowa, sought to pin down her view by pointing out that some sitting justices – including Associate Justices Stephen Breyer and Ruth Bader Ginsburg – publicly opposed the idea. Jackson noted Breyer and Ginsburg had already been confirmed when they made those comments.
"Other nominees to the Supreme Court have responded as I will," Jackson said, "which is that it is a policy question for Congress."
Jackson made it through two days of questioning with matter-of-fact, technical responses to hundreds of questions from nearly two dozen senators. It wasn’t until the final moments of the session Wednesday when the complicated legal questions gave way to a few moments of raw emotion.
Jackson recalled how she felt when she first arrived on campus at Harvard – a Miami native who may have doubted herself, may have questioned whether she could cut it at the Ivy League school.
“And a Black woman I did not know was passing me on the sidewalk,” Jackson said, choking back tears.
“She looked at me, and I guess she knew how I was feeling,” Jackson said. “And she leaned over as we crossed and said ‘persevere.’”
What would Jackson tell young people watching the first Black woman nominated to the Supreme Court, Sen. Alex Padilla, D-Calif., asked.
“I would tell them to persevere,” Jackson said.
Her husband, Dr. Patrick Jackson, tearfully wiped his eyes as the judge spoke of his support during her professional journey. He drew attention for sporting colorful socks with the faces of former presidents and Founding Fathers as he looked on and smiled.
She highlighted the challenges of being a working mother of daughters Talia and Leila, failing to always get "the balance right" in her career and parenthood.
During the hearing, on Leila's seat was a yellow piece of paper adorned with hand-drawn balloons that read, "You got this!"
Among Republican senators, potential 2024 presidential candidates delivered some of the most aggressive lines of questioning and previewed GOP midterm messaging by highlighting issues including critical race theory, education policy, abortion and transgender rights.
Some focused more on previous Supreme Court battles than on Jackson. Several Republicans groused about the treatment of Amy Coney Barrett and Brett Kavanaugh, President Donald Trump's picks to become associate justices. Kavanaugh's hearings in 2018 became a national spectacle over decades-old allegations of sexual misconduct, which he denied.
Jackson tried to avoid answering how she would rule on thorny cultural issues – some of which may end up before the high court – raised by Republicans on the campaign trail in their bid to win control of Congress in November.
Cruz displayed images from a controversial book that he said is taught at a private school in Washington, where she sits on the board. He pressed her on whether she thought children should be taught "that babies are racist" as the book suggested.
The Texas senator asked her about critical race theory, an academic critique that racism systematically permeates various institutions. Jackson responded that she's never studied the issue, which doesn't come up in her work as a judge, and "it wouldn’t be something I would rely on if I was on the Supreme Court."
She avoided other legal controversies such as abortion and LGBTQ rights.
“Can you provide a definition for the word ‘woman’?” Blackburn asked, an apparent reference to legal questions about transgender rights.
"I can't. Not in this context," Jackson responded. "I'm not a biologist."
"The meaning of the word 'woman' is so unclear and controversial that you can't give me a definition?" Blackburn continued.
Pressed on her views about abortion, Jackson said the landmark Roe v. Wade decision in 1973 that established a constitutional right to the procedure remained "settled as precedent." She didn't discuss the fact that the high court is considering a case that could unsettle it, potentially upending the reproductive rights framework that's been in place for decades.
Contributing: Kevin McCoy, Ella Lee, David Jackson and Rick Rouan