Supreme Court nominee Ketanji Brown Jackson on Monday promised she would be an independent jurist who will decide cases “without fear or favor” — emphasizing her neutrality on the bench in hopes of heading off the expected criticism from Republicans that she has been a judicial activist.
“I know that my role as a judge is a limited one — that the Constitution empowers me only to decide cases and controversies that are properly presented. And I know that my judicial role is further constrained by careful adherence to precedent,” Jackson said.
In anticipation of questions from Republicans about her judicial philosophy and rulings against the Trump administration, Jackson emphasized that she decides cases from a “neutral posture.”
“I evaluate the facts, and I interpret and apply the law to the facts of the case before me, without fear or favor, consistent with my judicial oath,” she said.
Jackson’s opening remarks capped off a day when both Democratic and Republican senators — who took turns delivering their own statements on the first day of Jackson’s four-day confirmation hearings — indicated they were eager to turn a page away from the bitterness and heated rhetoric of past Supreme Court confirmation battles.
Yet at the same time, a handful of Senate Republicans unspooled years of political grievances about the judiciary wars, as they invoked not just the grueling fight over now-Justice Brett M. Kavanaugh’s confirmation nearly four years ago but also the treatment of other GOP judicial nominees dating back to Robert Bork in 1987.
In his opening remarks, Sen. Ted Cruz (R-Tex.) promised Jackson that she would not be asked during the hearings this week about her “teenage dating habits” or whether “you like beer.” Both are references to the Kavanaugh confirmation fight, during which California professor Christine Blasey Ford alleged that Kavanaugh had sexually assaulted her at a party in the Washington suburbs when they were teenagers. Kavanaugh vigorously denied the accusations, and Senate Republicans have since called the episode a character assassination orchestrated by Democratic lawmakers.
And while one Democratic senator after another on Monday touted Jackson’s history-making nomination, Senate Republicans referenced past fights that they feel prevented their party from making their own diverse picks to the courts. It echoed the fury that Senate Democrats unleashed against Republicans during confirmation battles for nominees from President Donald Trump, when Democrats were still fuming over the GOP blockade of Merrick Garland, President Barack Obama’s final pick to the Supreme Court, in 2016.
“If this process were conducted in good faith, Miguel Estrada and Janice Rogers Brown might well be on the Supreme Court today,” Sen. Ben Sasse (R-Neb.) said, referring to a Latino lawyer and a Black female judge who had once been touted as potential justices from Republican presidents. “But their opponents lied and bullied rather than accepted principled minority judges.”
Jackson will face the first round of questioning on Tuesday, which Republican senators have said will encompass a panoply of issues involving Jackson’s judicial philosophy and her record in her previous government positions, such as her service on the U.S. Sentencing Commission. Several GOP senators have signaled they want to press Jackson on her representation of detainees at Guantánamo Bay, as both a public defender and in private practice.
Sen. Charles E. Grassley (Iowa), the top Republican on the Judiciary Committee, noted that GOP senators had faced accusations that they had “cherry-picked” parts of Jackson’s sentencing record as a judge. In a somewhat ominous warning, he added: “Don’t worry. We’re going to talk about the other ones, too.”
Other GOP senators weren’t as coy.
Sen. Josh Hawley (Mo.) carried out his highly advertised plan to question Jackson on what he has cast as her alarmingly lenient record regarding sentencing child pornography convicts. Hawley ticked through seven cases that Jackson handled as a district judge, framing each one by stating the lengthy prison term she could have ordered a defendant to serve — but did not — under existing federal sentencing guidelines.
“I’m not interested in trapping Judge Jackson,” Hawley said. “I’m not interested in trying to play gotcha. I’m interested in her answers.”
A Washington Post review of the cases cited by Hawley found that while consistently lower than the guidelines and what prosecutors recommended, there was a basis for the length of most of the sentences that Jackson handed down.
For instance, in four of the seven cases, Jackson ordered defendants to serve the period of incarceration recommended by the U.S. Probation and Pretrial Services System. Investigators with the service often issue presentencing reports to the court, using a formula to assess a defendant’s risk to the public. According to a 2016 report published by the system, federal investigators classified child pornography convicts as the lowest risk to the public of any type of sex offender. A three-year recidivism study showed 13 percent were rearrested for any reason. Less than 3 percent were arrested for subsequent sex offenses, according to the report.
Judges and policy experts on both sides of the aisle have urged lawmakers to revisit the nearly 20-year-old guidelines on sex offenders. Judges have come to view them as so out of line with other penalties that they deviate below the recommendations in roughly 7 out of 10 cases, according to the U.S. Sentencing Commission.
“Despite your record, we’ve heard claims that you are, ‘soft on crime,’ ” said Senate Judiciary Committee Chairman Richard J. Durbin (D-Ill.) in Jackson’s defense. Referencing her endorsement from law enforcement groups such as the Fraternal Order of Police, Durbin added: “These baseless charges are unfair.”
Meanwhile, at least two of the former prosecutors now on the committee invoked their own experience to defend Jackson’s background in representing indigent clients. Jackson would be the first federal public defender on the Supreme Court.
“I’m proud of being a former prosecutor,” said Sen. Patrick J. Leahy (D-Vt.), a former chairman of the committee. “But confidence in my prosecution of a case was strongest when I knew the defendant had the best possible representation.”
Even with Hawley’s remarks, Monday’s most visceral attack was perhaps from Sen. Marsha Blackburn (Tenn.), the committee’s most junior GOP senator, who accused Jackson of a “hidden agenda” that included restricting parents’ rights and “greater freedom for hardened criminals.”
Jackson maintained a neutral expression, sometimes smiling, as she listened to senators speak for more than four hours. While Jackson made light of her reputation for lengthy, detailed court rulings, her remarks were succinct, lasting less than 15 minutes.
Though she was dispassionate in explaining her approach to the law, Jackson spoke in highly personal terms as she detailed her path in becoming the first Black woman nominated to the Supreme Court. She introduced her parents, Johnny and Ellery Brown, who experienced racial segregation firsthand and began their careers as public school teachers in Washington. They gave her an African name, which they were told means “lovely one.”
“My parents taught me that, unlike the many barriers that they had had to face growing up, my path was clearer, such that if I worked hard and believed in myself, in America I could do anything or be anything I wanted to be,” Jackson said.
She thanked her many mentors, including a high school debate coach who first introduced her to Harvard, where she received her undergraduate and law degrees, and Supreme Court Justice Stephen G. Breyer, the man she would succeed, who hired her as a law clerk.
“It is extremely humbling to be considered for Justice Breyer’s seat, and I know that I could never fill his shoes,” Jackson told the committee. “But if confirmed, I would hope to carry on his spirit.”
The hearing room — though still limited in capacity because of the ongoing pandemic — was full of ebullience from Jackson’s supporters, who ranged from family members to lawmakers from the Congressional Black Caucus and officials from civil rights groups. Her husband, Patrick Jackson, was visibly emotional as she spoke about their marriage, as her two daughters, Leila and Talia, accompanied him in the front row of the audience.
Several senators spoke of the importance of representation and how Jackson was an inspiration and role model. Sen. Alex Padilla (D), the first Latino senator to represent California, called her a trail blazer and delivered part of his remarks in Spanish.
“I just feel this sense of overwhelming joy as I see you sitting there, as I see your family sitting behind you,” said Sen. Cory Booker (D-N.J.), the sole Black senator on the committee. He added, “The story of America, I think, is a testimony to this world of what diverse people can achieve.”
Jackson is widely expected to be confirmed, as no Democratic senator so far has signaled any concern about supporting her nomination to replace Breyer and only a simple majority of the 50-50 Senate is needed for confirmation, with Vice President Harris empowered to break ties.
The one potential GOP vote in her favor on the committee, Sen. Lindsey O. Graham (R-S.C.), made it all but explicit he would not support her, calling President Biden’s selection of Jackson a “choice sponsored by the most radical elements of the Democratic Party when it comes to how to be a judge.”
Graham was one of three Republican senators who backed Jackson for her current seat on the D.C. Circuit, but he appeared aggrieved that the president did not select J. Michelle Childs, a federal judge in South Carolina and a finalist for the vacancy who faced some resistance from liberals.
“There’s been a wholesale effort of the left to take down a nominee from my state, and I don’t like it very much,” Graham said. “If that’s the way the game’s going to be played, then I’ll have a response.”
For its part, the White House continued to promote Jackson’s cross-party appeal, putting forward retired judge Thomas B. Griffith as one of her introducers before the committee. He was nominated by President George W. Bush and served on the D.C. Circuit, first meeting Jackson during her tenure on the trial court in Washington.
While Griffith said he did not always agree with Jackson on the outcome she reached in certain cases, he “respected her diligent and careful approach, her deep understanding and her collegial manner, indispensable traits for success as a justice on the Supreme Court.” Jackson, Griffith said, has demonstrated that she is “an independent jurist who adjudicates based on the facts and the law and not as partisan.”
“Time and again she has demonstrated that impartiality,” Griffith said.
Jackson’s Harvard roommate, Lisa Fairfax, described her friend’s work ethic, ability to bring people together and excellence even as a college student who could “transform the seemingly impossible into the achievable.”
“We knew early on that she could be anything she chose to be, but also that she seemed destined to be a judge because of her ability to see all sides and render fair and levelheaded decisions,” said Fairfax, now a professor at the University of Pennsylvania’s law school.
Biden called Jackson on Sunday night to wish her luck in the hearings, White House press secretary Jen Psaki said Monday. While his schedule made it difficult for him to follow the hearings, she said the president asked aides to provide him with regular updates.
Matt Viser contributed to this report.