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Supreme Court nominee Jackson says she would recuse herself from Harvard affirmative action case

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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Judge Ketanji Brown Jackson, President Biden’s nominee to the Supreme Court, said Wednesday that if confirmed, she would recuse herself from a case examining Harvard University’s admissions policies. Jackson, whose term on Harvard’s Board of Overseers expires this spring, previously had not said publicly what she would do.

Jackson’s statement came as she testified for nearly 10 hours before the Senate Judiciary Committee, with several Republicans sharply criticizing her as too lenient in her sentencing as a federal trial judge.

Jackson countered that it was unfair to solely focus on a subset of cases and emphasized that she had handed down tough sentences. Later, as Sen. Cory Booker (D-N.J.), the only Black senator on the panel, came to her defense and praised her, Jackson became visibly emotional.

“You have earned this spot. You are worthy. You are a great American,” Booker told Jackson, who if confirmed would be the first Black woman on the court in its 233-year history.

Proceedings on Thursday, the final day of hearings, will feature outside witnesses.

Here’s what to know

  • Sen. Lindsey O. Graham (R-S.C.) and Sen. Ted Cruz (R-Tex.) pressed Jackson on whether she had been too lenient with sentencing in child pornography cases but repeatedly interrupted her before she could give an answer. Judiciary Committee Chairman Richard J. Durbin (D-Ill.) eventually intervened.
  • Sen. Jon Ossoff (D-Ga.) asked Jackson to talk about her brother, a former police officer in Baltimore, after Republicans sought to portray Jackson as soft on crime.
  • Durbin rebuffed a request from all but one Republican senator on the committee for all presentencing reports from the child pornography cases Jackson handled as a judge.
  • Jackson, 51, has been nominated by Biden to replace Justice Stephen G. Breyer, who is retiring. Breyer, 83, the high court’s oldest justice, has been a reliable liberal vote.
6:04 p.m.
Headshot of Seung Min Kim
Seung Min Kim: Booker’s impassioned speech praising Jackson and her history-making nomination — meant to uplift what had become a tense and at times ugly atmosphere in Hart 216 — definitely made members of the audience emotional. Lots of sniffles were heard around the room — which some later confirmed were tears. Jackson herself was brought to tears and used a tissue to wipe at her eyes as Booker spoke. Committee Democrats later tweeted: “There was barely a dry eye in the Senate Judiciary Committee just now. That’s what happens when you have a nominee who inspires this nation — just like @SenBooker inspires us every day.”
Seung Min Kim, White House reporter
3:44 p.m.
Headshot of Ann Marimow
Ann Marimow: Jackson’s disclosure that she would recuse herself from the Supreme Court’s affirmative action case because of her Harvard ties is perhaps not surprising because of the way she has handled questions of recusal as a trial court judge. Jackson, whose term on Harvard’s board expires in May, went out of her way as a District Court judge to disqualify herself from handling several cases, even when ethics experts said it was not necessary, and cited her concern that her impartiality might be questioned.
Ann Marimow, Legal affairs reporter
1:58 p.m.
Headshot of Robert Barnes
Robert Barnes: The real-life Supreme Court intruded into the Ketanji Brown Jackson hearings when the Supreme Court announced Wednesday that it was overturning a decision by the Wisconsin Supreme Court to impose legislative redistricting maps drawn by the state’s Democratic governor. Sen. Amy Klobuchar (D-Minn.) used it as an example of the court’s “shadow docket,” in which the court rules on important decisions brought to it on an emergency basis. Klobuchar read from the dissent by Democratic-appointed Justices Sonia Sotomayor and Elena Kagan but did not ask Jackson to comment.
Robert Barnes, Reporter covering the U.S. Supreme Court
12:45 p.m.
Headshot of Mike DeBonis
Mike DeBonis: Graham’s tense exchange with Jackson over her sentencing practices in child pornography cases came after Graham’s time had expired. But Jackson insisted on responding to an earlier point and thus prompted another eight minutes of discussion on the topic that allowed Graham to hammer his attacks. “You can be doing this for 15 minutes, and all of a sudden you are looking at 30, 40, 50 years in prison,” Jackson said, explaining her thinking in such cases. “Good, good. Absolutely good,” Graham thundered. “So you don’t think that’s a bad thing. I think that’s a horrible thing.” Typically nominees are advised to keep their responses short and to the point and to save their rebuttal for exchanges with friendly senators. Jackson has been careful through the hearing to avoid stepping into GOP traps, but this was rare instance where she created one.
Mike DeBonis, Congressional reporter covering the House of Representatives
12:29 p.m.
Headshot of Seung Min Kim
Seung Min Kim: The audience in the hearing room — pandemic-packed with Jackson’s supporters, family and passersby wanting to witness history — has been largely quiet during the hours of grilling that she has endured this week, even in the more tense moments. Not so when Graham questioned her Wednesday. As he repeatedly interrupted Jackson, some audience members were murmuring sounds of disapproval. At least one woman muttered “shut up” as Graham again interjected. And later, when Sen. Dianne Feinstein (D-Calif.) praised Jackson for her “stamina,” many of the women in the audience knowingly chuckled.
Seung Min Kim, White House reporter
10:42 a.m.
Headshot of Robert Barnes
Robert Barnes: In questioning Jackson about an amicus brief she wrote supporting a Massachusetts buffer zone law around health facilities, Sen. Thom Tillis (R-N.C.) indicated the Supreme Court ultimately found the law unconstitutional. But the court’s 2014 ruling in McCullen v. Coakley was about a replacement law the state passed in 2007, because it thought the original law not strict enough.
Robert Barnes, Reporter covering the U.S. Supreme Court
10:19 a.m.
Headshot of Ann Marimow
Ann Marimow: Sen. Thom Tillis (R-N.C.) is asking Jackson about an amicus brief she wrote as a lawyer in private practice on behalf of women’s groups defending a Massachusetts law that kept abortion protesters away from the entrance to clinics. The law was based on a Colorado buffer zone measure that has been upheld by the Supreme Court. The Massachusetts law was upheld by the U.S. Court of Appeals for the 1st Circuit, and the Supreme Court denied review.
Ann Marimow, Legal affairs reporter
9:46 a.m.
Headshot of Seung Min Kim
Seung Min Kim: What caught my attention this morning from Sen. Jon Ossoff’s (D-Ga.) line of questioning was that it appears to be the first time a senator has asked Jackson directly about her rulings on executive power involving the Trump administration. As a trial court judge in Washington, Jackson had a chance to weigh in on a dispute between the former president and House Democrats as lawmakers sought testimony from Donald McGahn, the former White House counsel. She sided with Congress in a 2019 decision that included one of her most notable lines in a decision: “Presidents are not kings.”
Seung Min Kim, White House reporter
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