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Supreme Court nominee Jackson defends her record as judge, public defender in marathon hearing

Supreme Court nominee Ketanji Brown Jackson faced questions from senators on March 22 during the second day of her confirmation hearing. (Video: Joy Yi, Mahlia Posey/The Washington Post, Photo: Jabin Botsford/The Washington Post)
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Supreme Court nominee Ketanji Brown Jackson defended her record as a federal public defender and district court judge on her second day of confirmation hearings for a seat on the Supreme Court.

Tuesday’s proceedings stretched past 10 p.m. — more than 13 hours after they began. At one point toward the hearing’s end, in response to questioning by Sen. Cory Booker (D-N.J.), Jackson grew emotional as she paid tribute to her parents and grandparents and spoke about the difficult decisions she has had to make as a working mother.

“It’s a lot of early mornings and late nights,” Jackson said. “And what that means is there will be hearings during your daughter’s recitals. There’ll be emergencies on birthdays that you have to handle. And I know so many young women in this country — especially who have small kids — who have these momentous events and have to make a choice.”

Republicans repeatedly questioned Jackson about her sentencing record in child pornography cases and sought to link her to critical race theory, an academic framework for examining systemic racism that’s typically used by legal scholars. Democrats denounced a Republican National Committee tweet on the topic as racist, and Jackson said the intellectual framework does not come up in her work as a judge.

Here’s what to know

  • Jackson told senators that she believes the two landmark decisions that made abortion legal in the United States are “settled law.”
  • Sen. Lindsey O. Graham (R-S.C.) pressed Jackson to rate her religious faith “on a scale of 1 to 10.″
  • In response to questioning by Sen. Josh Hawley (R-Mo.) on her sentencing record in child pornography cases, Jackson said such crimes are “egregious” but that judges are required by Congress to impose a sentence that is “sufficient but not greater than necessary.”
  • If confirmed, Jackson would be the first Black woman on the Supreme Court in its 233-year history.
  • The 22 senators on the Judiciary Committee will get a second chance to question Jackson on Wednesday. Thursday will feature testimony from outside witnesses.
  • Jackson, 51, has been nominated by President Biden to replace Justice Stephen G. Breyer, who is retiring. Breyer, 83, the high court’s oldest justice, has been a reliable liberal vote.
9:29 p.m.
Headshot of Paul Kane
Senior congressional correspondent and columnist
As Republicans again demanded more documents from Jackson’s trial court days, it’s time to remember that this is the perennial request from the minority party during confirmation clashes. Here’s a 2005 story on Democrats demanding more documents of Chief Justice John G. Roberts Jr. — and, from a few months later, during Justice Samuel Alito’s confirmation. Then in 2009, here’s the GOP minority demanding more documents for the Justice Sonia Sotomayor confirmation. It’s a pattern that continued with the confirmation hearings for the three justices nominated by President Donald Trump: Neil M. Gorsuch in 2017, Brett M. Kavanaugh in 2018 and Amy Coney Barrett in 2020.
5:17 p.m.
Headshot of Seung Min Kim
White House reporter
One GOP senator considered in play for Jackson’s confirmation said Tuesday that accusations that she has shown leniency in sentencing certain crimes was “off course.” A number of Republicans on the Judiciary Committee have criticized Jackson for a handful of sentences she handed down as a trial court judge. For instance, Sen. Josh Hawley (R-Mo.) has cited about a half-dozen cases concerning child pornography offenders in which Jackson handed down sentences lower than what the guidelines recommended. But Sen. Mitt Romney (R-Utah) appeared unmoved by the allegations from some of his conservative colleagues that have ignored key context such as that prosecutors also recommended sentences lower than the sentencing guidelines. “It struck me that it was off course, meaning the attacks were off course that came from some,” Romney told The Washington Post’s Paul Kane on Tuesday. “And there is no there, there.” Romney, who is not on the Judiciary Committee and has not yet met with Jackson, said her judicial philosophy will probably be the most important factor as he weighs whether to support her confirmation.
3:40 p.m.
Headshot of Ann Marimow
Legal affairs reporter
Jackson said she deeply appreciates the endorsement of retired judge Thomas B. Griffith, a nominee of Republican President George W. Bush. Griffith introduced Jackson to the committee on Monday and praised her record on the bench even though she noted he didn’t always agree with her rulings as a district judge. Griffith was part of a three-judge panel of the D.C. Circuit that twice reversed Jackson’s rulings in the case of former Trump White House counsel Donald McGahn. The full D.C. Circuit subsequently vacated those decisions and the Biden administration negotiated a deal for McGahn to testify before Congress to a narrow set of questions.
2:50 p.m.
Headshot of Ann Marimow
Legal affairs reporter
In response to questions from Sen. Amy Klobuchar (D-Minn.), Jackson expressed support for Supreme Court precedent upholding protections for the press. Before starting law school, Jackson did a brief stint as a journalist, when she worked for Time magazine as a staff reporter and researcher after graduating from Harvard in 1992.
2:14 p.m.
Headshot of Mike DeBonis
Congressional reporter covering the House of Representatives
Sen. Mike Lee (R-Utah) spent a good deal of his questioning time pressing Jackson on her views on the Ninth Amendment. To the general public, that amendment — which holds that the Constitution protects “unenumerated” rights not specifically spelled out in the document — is wholly obscure. But to conservative legal scholars, it is a subject of intense scrutiny going back decades, thanks to its role in some of the most significant Supreme Court decisions of the liberal courts of the 1960s and 1970s, including Roe v. Wade. A debate over the Ninth Amendment was a key moment in the ill-fated 1987 Supreme Court nomination of Robert Bork. Under questioning from Sen. Dennis DeConcini (D-Ariz.), Bork said he found the amendment ambiguous, analogous to an “inkblot” on the Constitution, and suggested it was a poor foundation for the nation-changing rulings the high court had made. Those remarks fueled liberal attacks on his jurisprudence, and his eventual defeat on the Senate floor.
1:33 p.m.
Headshot of Mike DeBonis
Congressional reporter covering the House of Representatives
A Supreme Court hearing is an opportunity for senators to question a nominee, but it also can be a high-profile platform for their personal issues. So it was not especially surprising Tuesday to see Sen. Sheldon Whitehouse (D-R.I.) engage in a lengthy aside about the “dark money” conservative network engaged in judicial nominations. It’s a topic on which Whitehouse has taken to giving weekly floor speeches, and he spent roughly 10 minutes on the subject before questioning Jackson on Tuesday — prompted, he said, by Republican attacks on Demand Justice, a Democratic-aligned dark money group. “I’ll be the first to concede that there is dark money on both sides, and I hope very much we can get rid of it on both sides shortly by legislation,” he said. “But there is a difference, I believe, between a dark-money interest rooting for someone and right-wing dark-money interests having a role in actually picking the last three Supreme Court justices.”
12:45 p.m.
Headshot of Ann Marimow
Legal affairs reporter
Sen. John Cornyn (R-Tex.) asked Jackson “why in the world” she had called former president George W. Bush and former defense secretary Donald H. Rumsfeld “war criminals” in a court filing. Jackson did not immediately recall the case, but Cornyn appears to be referring to her work as a public defender on behalf of Guantánamo detainee Khi Ali Gul, who was captured by Afghan forces in 2002. In a district court filing in 2005, Jackson challenged Gul’s detention and said he was confined to his cell for at least 23 hours a day and was experiencing “severe mental suffering.” She did not directly refer to Bush and Rumsfeld as “war criminals” but wrote that their actions, directing or “conspiring to bring about torture and other inhumane treatment” of Gul, “constitute war crimes and/or crimes against humanity” in violation of federal and international laws.
12:28 p.m.
Headshot of Seung Min Kim
White House reporter
As Sen. John Cornyn (R-Tex.) questions Jackson, I’m reminded that he actually voted in favor of her nomination to the U.S. Court of Appeals for the D.C. Circuit last year in committee but then opposed her on the Senate floor. A Cornyn aide told me he flipped his vote after seeing some of Jackson’s answers (or “lack thereof,” aide says) to written questions that senators submitted to her after her circuit court confirmation hearing. Sen. Lindsey O. Graham (R-S.C.), too, supported her in committee, helping Jackson avoid an extra procedural vote on the Senate floor to “discharge” a nomination out of committee, which happens if a panel vote is tied. I think it’s safe to assume that her Supreme Court nomination may end up tied, which would force Senate Majority Leader Charles E. Schumer (D-N.Y.) to take that additional procedural step.
11:36 a.m.
Headshot of Seung Min Kim
White House reporter
Although abortion won’t play a major role in Jackson’s confirmation hearings — considering the current ideological balance on the Supreme Court — her view on how Roe v. Wade is “settled law” echoes the testimony of one of her predecessors almost four years ago. In 2018, Brett M. Kavanaugh also told the Senate Judiciary Committee that he believed the 1973 case that legalized abortion nationwide was settled law, and he emphasized to senators that “one of the important things to keep in mind about Roe v. Wade is, it has been reaffirmed many times over the years.” It is also a view he stressed in private to a pivotal Republican swing vote, Sen. Susan Collins (Maine), one of the few GOP lawmakers who supports abortion rights. But Kavanaugh’s comments on abortion back then are being looked at in a new light, particularly after oral arguments on a Mississippi law that bars most abortions after 15 weeks. During the December arguments, Kavanaugh said the Constitution was silent on the issue of abortion and listed more than a half-dozen Supreme Court cases that had overturned precedents. The Supreme Court has yet to issue a ruling in the case.
10:37 a.m.
Headshot of Mike DeBonis
Congressional reporter covering the House of Representatives
In Monday’s opening statements, Republican after Republican cited a litany of grievances over Democratic handling of past judicial nominations, while Democrats generally stuck to praising Jackson. On Tuesday, however, two Democrats mentioned their party’s own towering grievance: the 2016 Republican blockade of President Barack Obama’s nomination of Merrick Garland to replace the late Justice Antonin Scalia. Led by then-Senate Majority Leader Mitch McConnell (R-Ky.), Republicans left the seat vacant for a year, allowing a new president, Donald Trump, to appoint a much more conservative justice.Discussing Republican concerns about “court-packing,” Durbin noted “there is exactly one living senator who has effectively changed the size of the Supreme Court” — McConnell, who effectively shrunk the court in 2016. And Sen. Patrick J. Leahy (D-Vt.) rebutted GOP attacks by citing the Garland incident. “We’re still waiting today for Republicans to explain on the record what kind of substantive concerns they had with Merrick Garland,” he said. “All I’m saying is, let’s make history this week, but let’s not rewrite it.”
10:18 a.m.
Headshot of Robert Barnes
Reporter covering the U.S. Supreme Court
Jackson knows her audience, of course, but her answers about looking to what provisions of the Constitution meant at the time they were adopted and her disavowal of relying on international law sounds more like the late Justice Antonin Scalia than her old boss Justice Stephen G. Breyer. It used to be a debating topic between the two.
10:02 a.m.
Headshot of Mike DeBonis
Congressional reporter covering the House of Representatives
Grassley spent a significant amount of his questioning time on an esoteric chapter of federal law — but one of great personal interest to him. He pressed Jackson on her views on the False Claims Act, the main federal law on government fraud, and in particular on its provisions allowing whistleblowers to initiate a claim and recover a portion of any damages. Grassley led a 1986 revision of the law that greatly strengthened those whistleblower provisions, known as “qui tam” claims, but they have been controversial in legal circles — with some, including former attorney general William P. Barr, arguing that allowing private parties to make claims violates the constitutional separation of powers. Grassley pressed Jackson on those points, but the judge demurred: “I don’t know if that issue has been squarely presented to the court, and I would be loath to comment on it.”
9:43 a.m.
Headshot of Ann Marimow
Legal affairs reporter
Jackson is defending her role representing Guantánamo Bay detainees as a federal public defender. Because of her skill crafting appellate briefs, former colleagues said Jackson was enlisted to tackle the complex, new area of law challenging the federal government’s detention of “enemy combatants” after the Sept. 11, 2001, terrorist attacks. She went on to advocate for the rights of detainees and to challenge the government’s legal review process as an attorney in private practice.
9:36 a.m.
Headshot of Robert Barnes
Reporter covering the U.S. Supreme Court
Durbin’s initial questions are designed to give Jackson the first crack at addressing the questions on which Democrats think she might be most vulnerable: expansion of the Supreme Court, her views on the limits of judicial authority, her sentencing of child porn defendants and representation of Guantánamo Bay detainees. Expect to hear less accommodating questioning from Republicans.
9:30 a.m.
Headshot of Mike DeBonis
Congressional reporter covering the House of Representatives
Sen. Josh Hawley (R-Mo.), who has indicated he plans to ask Jackson about her sentencing practices as a trial judge in child pornography cases, did a bit of a pre-buttal on Twitter on Tuesday morning.He said it would be “misinformation” for Jackson and Democrats to cite “probation guidelines” in responding to his questions. “There are no probation guidelines,” he wrote. “Probation advice is private. Not uniform. Not available to public.”While Hawley has criticized Jackson for imposing sentences below the public federal guidelines, the White House has noted that her sentences were in line with those recommended by federal probation officials. Those recommendations, in fact, are not “guidelines” to be applied across a broad class of cases but are tailored to individual cases.The federal probation office prepares a comprehensive report analyzing the facts of the case, the relevant federal statutes and sentencing guidelines, and the factors that could suggest a more severe or more lenient sentence. That report is typically available only to the judge and the parties in the case, but judges frequently read the probation recommendation into the public record when imposing their sentences.
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