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Ketanji Brown Jackson defends sentencing decisions, says she would recuse from affirmative action case in final contentious day of Senate questions

Supreme Court nominee Ketanji Brown Jackson faced questions from senators on March 23 during the second day of her confirmation hearing. (Video: Mahlia Posey, Joshua Carroll/The Washington Post, Photo: Jabin Botsford/The Washington Post)
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Supreme Court nominee Ketanji Brown Jackson sparred with Republican senators Wednesday in a series of charged, sometimes caustic encounters over their assertions she is a judicial activist who is soft on crime, insisting that she would not be a policymaker on the bench.

Lawmakers raised their voices and repeatedly interrupted Jackson during the final day of questioning in a confirmation process that turned surprisingly bitter. Republicans charged that she was obscuring her record and refusing to answer basic questions about her judicial philosophy. Wednesday’s hearing ended with Jackson defending her sentencing decisions as a trial court judge and having said for the first time that, if confirmed, she would sit out an upcoming affirmative action case because of her ties to Harvard University.

Democrats once more emphasized the historic nature of the nomination of the first Black woman to serve as a Supreme Court justice. And, as she did a day prior, Jackson portrayed herself as an independent jurist who understands the limited role of the courts and would serve as a check on government power.

“Judges can’t make law; judges should not be policymakers,” Jackson said. “That’s a part of our constitutional design, and it prevents our government from being too powerful and encroaching on individual liberty.”

How Ketanji Brown Jackson found a path between confrontation and compromise

Jackson, 51, was appearing before the Senate Judiciary Committee for the third consecutive day and for a fourth time overall, after her confirmation to the U.S. Sentencing Commission, U.S. district court and last year the U.S. Court of Appeals for the D.C. Circuit. Wednesday’s session lasted nearly 11 hours. The final day of hearings Thursday will include a broad lineup of outside witnesses called by both Democrats and Republicans who will either speak to their support for Jackson or reinforce GOP criticisms of the nominee.

The committee is expected to vote on Jackson’s nomination April 4. If Democrats stick together, Jackson could be confirmed without any Republican support in the evenly divided Senate, with Vice President Harris casting a deciding vote. But the White House is hoping for at least a handful of senators from the other side of the aisle.

Jackson pushed back against repeated criticism from Republicans who again suggested that as a trial judge she was too lenient in sentencing people convicted on child pornography charges. When asked by Sen. Josh Hawley (R-Mo.) whether she regretted what he characterized as a slap-on-the-wrist sentence for one defendant, Jackson said: “Senator, what I regret is that in a hearing about my qualifications to be a justice on the Supreme Court, we have spent a lot of time focusing on this small subset of my sentences.”

Republicans also pressed for more detail about her judicial philosophy and how she would interpret the law. Senate Minority Leader Mitch McConnell (R-Ky.), in a floor speech Wednesday, said Jackson had not been sufficiently forthcoming, calling many of her answers “evasive and unclear.”

“When asked about judicial philosophy, the nominee tried to punt by simply restating the most basic elements of a judge’s job description. She said she looks at the facts of cases and treats litigants fairly,” McConnell said in a statement. “That’s not explaining a judicial philosophy. That’s just rewording the judicial oath. It’s a non-answer.”

Sen. Sheldon Whitehouse (D-R.I.) rejected the idea that something was amiss if the nominee did not embrace a particular philosophy. “I think you have to have integrity. I think you have to have a judicial temperament, but a philosophy?” Whitehouse asked. “Let’s not get too excited about judicial philosophy if it’s nothing more than a screen for a predisposition that will benefit certain players in the arena.”

Like other recent Supreme Court nominees, Jackson was vague, referring to her approach as a “methodology.” Unlike some justices who joined the bench after a career in academia with an “overarching theory of the law,” Jackson said, her approach is based on “experience, from practice and consistent with my constitutional obligations.” At the start of each case, she added, “I am setting aside my personal views.”

Recent nominees from President Donald Trump — Justices Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — had more experience as appellate judges, and their approach to legislative interpretation and constitutional questions was clearer from their opinions. But during their confirmation processes they, too, resisted labels, as well as being compared to others instead of judged on their own work.

Barrett, a former law clerk to the late conservative justice Antonin Scalia, said several times, “If I’m confirmed, you would not be getting Justice Scalia. You would be getting Justice Barrett.” Similarly, Jackson declined to compare herself to other justices, including her mentor Justice Stephen G. Breyer, for whom she clerked and who is the retiring justice she would replace.

To the extent she discussed constitutional interpretation, it aligned with the approach favored by many conservatives. “I do not believe that there is a living Constitution in the sense that it’s changing and it’s infused with my own policy perspective or the policy perspective of the day,” she said in Tuesday’s hearing.

Instead, she seemed comfortable with a form of originalism, embraced by the court’s most conservative members, that means starting with the words of the document as popularly understood at the time of adoption.

“The Supreme Court has made clear that when you are 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,” she said. “And so I apply that constraint. I look at the text to determine what it meant to those who drafted it.”

In one of the tenser moments Wednesday, Sen. Lindsey O. Graham (R-S.C.) seized on Jackson’s district court ruling against Trump’s immigration policy and vented about Democrats’ treatment of Republican judicial nominees.

In the immigration case, in which Jackson blocked the Trump administration’s expansion of a fast-track deportation program, Graham said she had disregarded the language in the statute.

“You reached a conclusion because you disagreed with the Trump administration,” Graham said, calling her decision, “Exhibit A of judicial activism” and characterizing her as a “judge ignoring limitations placed in the law by Congress.”

Jackson said her ruling, which was reversed on appeal, had relied on the reading of a separate statute.

“That argument fell on deaf ears,” Graham shot back.

“Understood, that’s our appellate process,” Jackson responded.

Graham went on to question Jackson about her sentencing decisions and her view of how Democrats handled Kavanaugh’s confirmation hearings, repeatedly cutting off Jackson before she had an opportunity to fully answer.

At times, the audience — which had largely been quiet even during the most tense moments of the hearing — audibly reacted, with one woman muttering “shut up” as Graham once again interjected while Jackson was speaking. Later, when Sen. Dianne Feinstein (D-Calif.) praised Jackson for her “stamina,” many of the women in the audience knowingly chuckled.

For a second day, Republicans tried unsuccessfully to get Jackson to opine on several high-profile issues, including abortion, gun rights and proposals to expand the size of the Supreme Court. When Sen. Mike Lee (R-Utah) asked whether she has an opinion about Democratic efforts to add seats to the nine-member bench, Jackson said, “Senator, I have a lot of opinions. I’m a human being.”

“The reason why, in my view, it is not appropriate for me to comment is because of my fidelity to the judicial role. I understand that it’s a political question, and that is precisely why I am uncomfortable speaking to it.”

When Sen. Ted Cruz (R-Tex.) questioned her about the upcoming Supreme Court case examining the role race can play in Harvard University’s admissions policies, however, Jackson was quick to respond.

Cruz, who was Jackson’s Harvard Law classmate, noted that the judge serves on Harvard’s Board of Overseers — a six-year term that expires in late May.

“If you’re confirmed, do you intend to recuse from this lawsuit?” Cruz asked.

“That is my plan, senator,” Jackson replied.

Ketanji Brown Jackson’s Harvard ties raise recusal questions in Supreme Court’s affirmative action case

Conservative senators continued to amplify their assertions that Jackson showed leniency in sentencing some defendants in child pornography cases — an accusation that left out key details, such as that prosecutors in the case had also recommended sentences far below federal sentencing guidelines. But many Republican senators kept a relentless focus on her sentencing record, suggesting that, as a judge, Jackson had gone easy on pedophiles.

Hawley, Cruz and Graham each engaged in contentious exchanges with Jackson, interrupting her with varying levels of aggression as they questioned her handling of child pornography cases.

One that has been frequently referenced by GOP senators is the 2013 case of Wesley Hawkins, who was a recent high school graduate when Jackson sentenced him to three months behind bars for possessing videos depicting graphic imagery of several young victims. Federal guidelines called for a term of 97 to 121 months in prison, while prosecutors had sought 24 months. Hawley and other Republicans have questioned why she decided on three months.

Jackson stressed that “no one case can stand in for my entire record.”

In a patient yet stern tone, Jackson reminded the committee of her family’s law enforcement roots and that, as a judge, she often took the graphic cases with her home at night.

“I am fully aware of the seriousness of this offense and also my obligation to take into account all of the various aspects of the crime as Congress has required me to do,” Jackson said.

Late Wednesday afternoon, all but one Republican senator on the committee put forward a request to the committee’s chairman, Sen. Richard J. Durbin (D-Ill.), seeking all presentencing reports from the child pornography cases Jackson handled as a judge. Those documents are typically sealed and contain highly sensitive personal information, and Durbin said he would not get involved in releasing such documents to senators, saying the additional information was unlikely to change senators’ minds about Jackson’s nomination.

The one GOP senator who did not sign was Ben Sasse (Neb.). A spokesman said the senator believes that while the documents were an “important process issue,” Sasse would continue to focus on judicial philosophy instead.

The White House and senior Democrats have invested significant effort in courting a handful of key Republican senators who could offer Jackson bipartisan support. It remains in flux how much the argument from conservative Republicans on Jackson’s sentencing practices would resonate with some of those key swing votes, although at least one — Sen. Mitt Romney (Utah) — has been largely dismissive of the charges that she was too lenient.

Sen. Rob Portman (R-Ohio), who is not on the committee but receives a detailed report each night from staffers, said the sentencing issues are part of what he will take into account.

“I’m not going to make my decision until this all over, analyze everything, but I do think questions about her record are totally appropriate,” said Portman, who is retiring later this year. “They should be done in a respectful way.”

After hours of tense back-and-forth in which Republicans repeatedly questioned Jackson’s professional judgment, Sen. Cory Booker (D-N.J.) gave an impassioned speech praising Jackson as a “great American” who is “so much more than your race and gender.” He noted that Republicans had not raised similar concerns about Jackson’s sentencing record during her appellate court confirmation hearing last year in which she received the support of three Republican senators.

Booker brought Jackson — and others in the audience — to tears as he compared her to Black heroes of the past, who he said loved their country “even though their country didn’t love them back.”

“You have earned this spot. You are worthy. You are a great American” and a “harbinger of hope” that “this country is getting better and better,” Booker said. “And when that final vote happens and you ascend onto the highest court in the land, I’m going to rejoice.”

Mariana Alfaro, Mike DeBonis, Paul Kane, Eugene Scott, Felicia Sonmez, Amy B Wang and John Wagner contributed to this report.

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