The first full day of questions Tuesday for Supreme Court nominee Judge Ketanji Brown Jackson delved quickly into very big ones on judicial philosophy, terrorism and race, a grueling marathon of debate over President Joe Biden’s historic pick.
Senators wanted to know her approach to the law, her views on “court packing” and her response to claims by Republican Sen. Josh Hawley that she has been too lenient in sentencing child pornography offenders and is generally soft on crime.
At one moment, Jackson simply paused, and sighed, before answering Republican Sen. Ted Cruz, who pulled out children’s books to quiz the Harvard-educated lawyer for her views about teaching the academic subject of critical race theory.
Jackson is making history as the first Black woman nominated for the court, which once upheld racial segregation in America and for 233 years has been filled mainly with white men.
Democrats have the potential votes in the 50-50 Senate to confirm Jackson as Biden’s choice to replace retiring Justice Stephen Breyer even if all Republicans line up opposed. Her nomination is on track for a vote by Easter.
If confirmed, Jackson would also become the sixth woman justice in the court’s history and with three now serving “the closest we’ve ever come to gender equity,” said Sen. Dianne Feinstein, D-Calif.
Takeaways from day two of Jackson’s weeklong confirmation hearing:
‘STAY IN MY LANE’
With Jackson undeniably well qualified to be a justice on the Supreme Court, senators say, the question, then, is what is her judicial philosophy — will she be an activist judge, trying to set policy, or one who adheres to strict interpretations of the law?
“I am trying, in every case, to stay in my lane,” Jackson told Senate Judiciary Committee chairman Dick Durbin, D-Ill., who posed it as the first question, an opportunity for Jackson to preemptively lay out her approach to the law. “Without fear or favor.”
SOFT ON CRIME?
Much the way Southern senators sought to portray the first Black nominee to the Supreme Court, Thurgood Marshall, as soft on crime 55 years ago, some Republican senators see Jackson’s treatment of criminal defendants as one of their strongest arguments against her.
Hawley, R-Mo., set the tone even before the hearings began, raising concerns that Jackson gave child pornography defendants lighter sentences than required. Cruz and other Republicans have piled on.
On Tuesday, Jackson said flatly, “Nothing could be further from the truth.”
The mother of two daughters told senators she still has nightmares after having pored through the graphic evidence of child pornography cases in her courtroom.
“These are some of the most difficult cases a judge has to deal with,” she told them.
She later stood by her work representing terrorism suspects at Guantanamo Bay as a federal public defender, saying the service ensures due process. And she spoke more personally about her own family’s work in law enforcement, and knowing what it’s like to worry about their safety.
“These are not abstract concepts or political slogans to me,” she said.
Fact checkers have said Hawley is selectively choosing cases, including many in which prosecutors also sought more lenient sentences than federal sentencing guidelines.
CRUZ AND ‘ANTIRACIST BABY’
Cruz veered from legal arguments to the heated debates over critical race theory, an academic area of study that examines the role of race in the founding of the U.S.
Displaying a stack of books on racism from the reading list at Georgetown Day School, a prestigious private campus where Jackson serves on the board, Cruz grilled the nominee for her views on the topic.
“I’ve never studied critical race theory, and I’ve never used it. It doesn’t come up in the work that I do as a judge,” Jackson told Cruz.
Cruz produced a poster-size page from “Antiracist Baby” by noted scholar Ibram X. Kendi and asked, “Do you agree with this book that is being taught with kids that babies are racist?”
“Senator,” Jackson said, sighing. “I do not believe any child should be made to feel as though they are racist,” she said.
She had explained Georgetown was founded in 1945 during legal segregation, when white and Black families came together to educate their children. The board doesn’t make curriculum decisions.
Cruz and Jackson both attended Harvard Law, a year apart, and said they knew one another, though not well.
Court packing — the idea of adding justices to the Court — is gaining traction among liberals who want to tip the balance of the court away from conservatives, who now have a 6-3 majority thanks in large part to Donald Trump, who as president picked three new justices.
Jackson turned to the conservative Justice Amy Coney Barrett as an example to follow when asked her views on court packing.
“My North Star is the consideration of the proper role of a judge,” Jackson told senators.
“I agree with Justice Barrett,” she told them, referring to Barrett’s refusal to weigh in on the issue during her confirmation hearing. “Judges should not be speaking to political issues.”
GOD, KAVANAUGH AND GOP GRIEVANCE
Unable to stop Jackson’s confirmation, Republicans at least want to show Americans they gave the judge a fair hearing — unlike the explosive session over Judge Brett Kavanaugh’s nomination when he was accused by Democrats of sexual assault as a teenager, charges he strongly denied.
Republican Sen. Lindsey Graham of South Carolina dredged up decades-old grievances over the way conservative nominees have been treated, back to Ronald Reagan’s failed nomination of Robert Bork.
In one heated exchange, he asked Jackson deeply personal questions about her Protestant faith.
“As you know, there’s no religious test in the Constitution,” Jackson told the senator.
“Well, how would you feel if a senator up here said of your faith that ‘the dogma lives loudly within you’?” Graham said later, reviving Feinstein’s 2017 remarks about Barrett’s conservative Catholic beliefs.
It’s kind of double standard, he said, that portrays any conservative as “some kind of weirdo.”
He said, “We’re tired of it.”
It’s taken 233 years to arrive at this moment, with the first Black woman nominated to be a justice on the Supreme Court. Jackson’s own story is part of that history.
Responding to the top Republican Sen. Chuck Grassley of Iowa about a speech she had delivered citing Rev. Martin Luther King Jr., she told the senators how one generation could go from the racially segregated schools her parents attended in Florida to her sitting before the Senate, nominated to the high court.
“The fact that you can come that far was, to me, a testament to the hope and the promise of this country, the greatness of America,” she said.
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