Republicans to roll dice by grilling Jackson over child pornography sentencing decisions
Republicans on the Senate Judiciary Committee are set to grill Judge Ketanji Brown Jackson on Tuesday over what they say is her record of leniency in sentencing people who pleaded guilty to possession or distribution of child pornography — a politically loaded charge.
Sen. Josh Hawley (R-Mo.), who is widely thought to be eyeing a run for president, is pushing this line of questioning most forcefully. But other Republicans on the panel, such as Sen. Marsha Blackburn (R-Tenn.), are expected to press Brown on the issue as well.
Of all the criticisms leveled at Jackson, the accusations that she’s been soft on child predators are gaining the most attention, but it’s a politically risky line of attack against the first Black woman nominated to serve on the nation’s highest court.
Republicans have promised a dignified confirmation process, and they don’t want to appear that they’re ganging up unfairly on President Biden’s nominee or waging an unfounded attack.
“They have to worry about the politics of race and gender. They don’t want to come across as ganging up on a Black woman or being unfair in their treatment of her,” said Darrell West, the director of governance studies at the Brookings Institution.
Senate Minority Leader Mitch McConnell (R-Ky.) has tried to turn down the political rhetoric surrounding this Supreme Court confirmation battle and even acknowledged that Jackson is qualified for the job.
“She’s clearly a sharp lawyer with an impressive résumé,” he said after meeting her.
The GOP leader sees Biden’s handling of inflation, the chaotic withdrawal of U.S. troops from Afghanistan and the administration’s lofty social spending ambitions as promising political targets and isn’t in the mood to wage a scorched-earth campaign of personal attacks against a history-making nominee.
He said “the Senate’s process should be dignified” but also advised it must also be “vigorous, exhaustive and painstaking.”
Hawley has a different set of priorities. He’s looking to boost his national political profile and isn’t afraid of taking positions that aren’t popular with the political mainstream, or even his party’s mainstream. He showed that last year when he helped lead opposition to the certification of Pennsylvania’s electoral votes in the 2020 presidential election.
Hawley last week tweeted that Jackson “has a pattern of letting child porn offenders off the hook for their appalling crimes, both as a judge and as a policymaker.”
His office on Monday provided The Hill with a list of seven cases in which she handed down sentences below or well-below the federal guidelines to defendants who pleaded guilty on child pornography-related charges.
This has prompted angry pushback from the White House and Senate Judiciary Committee Chairman Dick Durbin (D-Ill.).
“First, it’s not true, and, second, consider the source,” he said, alluding to Hawley’s objections to Biden’s electoral victory.
“This is a right-wing, last-minute effort. We have reviewed this woman’s record — this is the fourth time we’ve gone through 600 cases, 12,000 pages of sentencing commission activity, and now he’s come up with this revelation,” Durbin said, adding that the criticism “certainly challenges” the Republican promise to hold a dignified process.
Jackson was previously confirmed by the Senate on a bipartisan basis on three occasions: to serve on the U.S. Sentencing Commission, to serve on the U.S. District Court for the District of Columbia and to sit on the D.C. Circuit Court of Appeals.
The Washington Post’s “Fact Checker” column characterized Hawley’s arguments as a “misleading attack” on Jackson’s record and gave him three “Pinocchios,” or a “mostly false” rating.
Brian Fallon, the executive director of Demand Justice, a progressive advocacy group that strongly supports Jackson, accused Republicans off spinning up conspiracy theories to derail her nomination.
“Republicans have gone from promising a dignified proceeding to leveling Pizzagate-style attacks against Judge Jackson. The criticisms have been so widely debunked that anyone who still pursues this line of questioning at this point is only debasing themselves,” he said, referring to a conspiracy theory during the 2016 presidential race that Democratic elites were running a child sex ring out of the basement of a D.C. pizzeria.
This leaves senators not in the confirmation hearings wondering just how nasty the fight will get this week.
“McConnell has to be worried that Hawley and others might make Republicans look too extreme. He wants to present a more benign view of the party leading into the 2022 elections, and he’s not going to want people to come on too strong,” West, of the Brookings Institution, added.
A Senate Republican aide, however, said McConnell believes anything in her record, including her alleged pattern of handing out sentences for child pornography offenses below the federal sentencing guidelines, is fair game for debate.
Speaking on the floor Monday, McConnell called the nominee “a likable person” who has “reached impressive heights in the legal profession.”
He didn’t directly address her sentencing decisions in child pornography cases that fell below federal guidelines but questioned her “empathy” for criminal defendants.
“Even as America grapples with an historic crime wave, the president has chosen a nominee whose own supporters say her work as a criminal defense lawyer on the U.S. Sentencing Commission will tilt her judgment in favor of convicts,” he said.
A background briefing document compiled by Republicans on the Senate Judiciary Committee states that Jackson, as a law student at Harvard University, “advocated for softer treatment of sex criminals.”
The document asserted that Jackson in a 1996 Harvard Law Review article suggested that it is improper to notify communities that an individual has been convicted of a sex crime and criticized court decisions punishing sex offenders. The document also highlighted seven child pornography cases in which Jackson as a district judge sentenced offenders to fewer months in jail than what government prosecutors recommended.
The document noted that in five of those cases, the offenses carried statutory mandatory-minimum sentences and Jackson gave the defendant the minimum sentence in three, while prosecutors requested sentences above the minimum in all but one case.
Legal experts argue that judges often hand out sentences below the advisory guidelines in child pornography cases and point out there’s a debate in the legal community about whether the guidelines are out of step with the ease of sharing pornographic images in a digital age.
Data compiled by Republicans on the Senate Judiciary Committee show that Jackson gave out sentences for the distribution and possession of child pornography that were shorter than the national average.
Douglas Berman, a law professor at Ohio State University, pointed out that when Jackson was on the U.S. Sentencing Commission, she was part of a bipartisan commission that expressed concern about how statutory mandatory-minimums function.
He explained that federal judges don’t have discretion to sentence a defendant below a statutory minimum but can depart from advisory guidelines.
He said the advisory guidelines that Jackson has gone below in her sentencing decisions are “dysfunctional and unduly severe.”
“That’s something the commission has said repeatedly, that’s something judges have said repeatedly, that’s something scholars have said repeatedly,” he said. “As we’ve moved into a digital [age] and accessing child pornography is so much easier … it no longer makes sense to say, ‘Oh well, if you have lots of images than somebody with fewer images.’”
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