LIVE COVERAGE: GOP senators grill Jackson in grueling day
Senators in both parties on Tuesday are set to question Ketanji Brown Jackson at the second day of confirmation hearings for President Biden’s nominee for the Supreme Court.
The hearing of the Senate Judiciary Committee is slated to begin at 9 a.m. The Hill will be providing updates below.
Jackson said on Tuesday night, in response to questions from Sen. John Kennedy (R-La.), that she did not have a “strongly held” opinion on expanding the Supreme Court, a question Republicans pledged to focus on as part of the hearing.
Kennedy was the latest senator to ask about court expansion, an idea backed by some progressive outside groups.
“Any opinion that I.. have is not something that would come up in my work as a judge,” Jackson told Kennedy.
When Kennedy pressed if she had an opinion on it at all, Jackson replied that it was “not a strongly held” opinion.
“I haven’t really thought about it,” Jackson said, while adding that she understood “it to be a political issue.”
Jackson has declined multiple times on Tuesday to weigh in on whether the court should be expanded, noting that it’s a decision that is up to Congress.
— Jordain Carney
A heated argument broke out about access to a sentencing recommendations from the U.S. probation office related to several of Jackson’s cases.
The issue bubbled up when GOP Sen. Ted Cruz (Texas) noted that Sen. Mazie Hirono (D-Hawaii) referenced sentencing recommendations from the U.S. probation office that neither he nor his staff had seen.
“To the best of my knowledge those probation recommendations are not in the record,” Cruz said.
The Judiciary Committee went into a brief pre-scheduled break, but when they came back the argument restarted.
Cruz noted that he had been handed a piece of paper on his way back into the committee room with the probation office recommendations for several cases.
“Is there anything else that Democrats have access to in this case that they’re not sharing with Republicans on this committee?” Cruz asked.
When Cruz accused Senate Judiciary Committee Chairman Dick Durbin (D-Ill.) of hiding information, Durbin interjected, saying: “Senator you always draw your own inferences and I know where most of them head.”
But other senators quickly jumped in.
Sen. John Kennedy (R-La.) questioned if senators had to be “clairvoyant” to know to request the sentencing recommendations document from the White House, which Durbin initially indicated was available upon request.
Kennedy also appeared frustrated when Durbin said that some Democrats on the panel received the document with the probation office’s sentencing recommendations in the cases earlier Tuesday.
“Sometime today, that covers a lot of ground, Richard,” Kennedy said.
Sen. Cory Booker (D-N.J.) then jumped in on a comedic note, saying that he didn’t want this to be a partisan issue.
“My staff just says we just got it 10 minutes ago as well, so I’m very upset. I join Ted Cruz,” Booker said.
— Jordain Carney
Sen. Josh Hawley (R-Mo.), the first Republican senator to raise concerns about Judge Ketanji Brown Jackson’s handling of child pornography cases, told the Supreme Court nominees that he lives in fear that his own kids could be exploited by predators such as those he says she “let off the hook.”
Hawley’s tense back-and-forth with Jackson over her decisions to give sex offenders lesser sentences than what federal guidelines recommended provided one of the most dramatic moments of the first day.
Hawley focused on the case United States v. Hawkins, where Jackson gave the defendant a three-month prison sentence, below the government’s recommendation of two years in prison and far below the federal advisory guideline of a minimum of eight years of incarceration.
— Alexander Bolton
Sen. Ted Cruz (R-Texas) repeatedly pressed Ketanji Brown Jackson, the first Black woman nominated to serve on the Supreme Court, about critical race theory and whether it might influence her work as a justice during her confirmation hearing on Tuesday.
During the most dramatic part of the questioning, Cruz singled out a book titled “Antiracist Baby,” which argues that babies are taught to be racist or anti-racist and there is no neutrality.
The Texas senator said the book was taught to four- to seven-year-olds at Washington’s Georgetown Day School, where Jackson serves as a member of the board of trustees.
While showing blown-up pages of the book’s illustrations on poster-boards behind him, Cruz, a former GOP presidential candidate who may run again in 2024, pressed Jackson’s association with Georgetown Day School, which he said has a curriculum that is “filled to overflowing with critical race theory.”
— Alexander Bolton
Jackson is not considered a close contact with White House press secretary Jen Psaki, who tested positive for COVID-19 earlier Tuesday, the White House said.
Deputy press secretary Andrew Bates said in a statement Jackson is not considered a close contact with Psaki, “nor are any of the administration staffers who are working with her on the Hill. Judge Jackson is also fully vaccinated and boosted.”
Psaki tested positive for the virus earlier Tuesday ahead of President Biden’s trip to Europe to meet with allies and NATO leaders. The Centers for Disease Control and Prevention (CDC) defines a close contact as someone who was less than 6 feet away from an infected individual for more than 15 minutes.
The press secretary’s positive test is the latest in a string of individuals in the government contracting the virus amid concerns about a new wave of cases. Second gentleman Doug Emhoff and the Irish prime minister, who was in Washington, D.C., for St. Patrick’s Day, both tested positive last week, as did several House Democrats who attended a retreat in Philadelphia.
— Brett Samuels
Jackson pushed back firmly against Sen. Ted Cruz’s (R-Texas) efforts to paint her as soft on defendants in child pornography cases.
Cruz displayed a chart of eight cases in which Jackson sentenced the defendants to an average of 47.2 percent less than what prosecutors asked for, echoing an argument from some conservatives that has emerged in recent days to paint Jackson as uniquely soft on the issue.
“A couple of observations: One is that your chart does not include all of the factors that Congress has told judges to consider, including the probation office’s recommendation in these cases,” Jackson responded, prompting Cruz to say the committee did not have those recommendations available for review.
“The second thing I would say is that I take these cases very seriously as a mother, as someone who, as a judge, has to review the actual evidence in these cases and, based on Congress’ requirement, take into account not only the sentencing guidelines, not only the recommendations of the parties but also things like the stories of the victims,” she continued.
“Also things like the nature and circumstances of the offense and the history and characteristics of the defendants. Congress is the body that tells sentencing judges what they’re supposed to look at and Congress has said that a judge is not playing a numbers game,” Jackson said. “The judge is looking at all of these different factors and making a determination in every case based on a number of different considerations. And in every case, I did my duty to hold the defendants accountable in light of the evidence and the information that was presented to me.”
The exchange with Cruz was one of the more tense moments of Tuesday’s round of questioning and offers a preview of future questioning Jackson is likely to face from Sens. Josh Hawley (R-Mo.) and Marsha Blackburn (R-Tenn.), who have similarly raised concerns about her sentencing record on child pornography cases. White House officials and fact-checkers have called those claims misleading.
— Brett Samuels
Jackson told Sen. Amy Klobuchar (D-Minn.) that if confirmed she would be willing to review the Supreme Court’s use of the so-called “shadow docket” to issue unsigned opinions that shape the laws of the land without justices holding formal hearings or reviewing extensive briefs.
She said that while “there’s a balance the court has to consider” and has always had an emergency docket to give it more flexibility, “on the other hand, the court has also considered interest in allowing issues to percolate, allowing other courts to rule on things.”
“I am not privy at the moment to the justices’ views and why and how they’re using the emergency docket,” she said. “If I were fortunate enough to be confirmed, I would look at those issues.”
The shadow docket received new scrutiny in September after the court in a 5-4 emergency decision let stand a controversial Texas law banning most abortions in the state. The conservative justices who supported it didn’t sign the opinion.
The decision was all the more remarkable because Chief Justice John Roberts dissented and called the Texas law “not only unusual but unprecedented” and said he would have supported blocking its implementation.
Klobuchar noted “over the last few years we’ve seen the court increasingly deciding cases in this way, often over the dissent of maybe three or four of the justices.”
She pointed out that in the last term, the court granted 20 requests for emergency review via the shadow docket, a historically high number.
“Ten years ago in the October term of 2011, the court granted only six requests in an entire year,” Klobuchar said.
— Alexander Bolton
After returning from a 40-minute lunch break, Sen. Dick Durbin (D-Ill.) sought to defend Jackson from claims by Republican members of the panel, including Sens. John Cornyn (R-Texas) and Lindsey Graham (R-S.C.), that she had labeled former President George W. Bush and former Secretary of Defense Donald Rumsfeld as “war criminals.”
Durbin asked the nominee to clarify that she never called Bush or Rumsfeld “War criminals” in a personal capacity and only did so in habeas petitions she filed as a public defender on the behalf of detainees at the Guantánamo Bay Detention Camp.
“During your service as a public defender, you filed several habeas petitions against the United States naming former President Bush and former Secretary Rumsfeld in their officials capacities,” Durbin noted. “You were advocating on behalf of individuals who argued they were civilians wrongly classified as enemy combatants in the United States.”
He then asked Jackson to make clear that she never personally directed such an attack at former administration officials.
“To be clear, there was no time when you called President Bush or Secretary Rumsfeld a war criminal?” he asked.
Jackson confirmed she never made such a claim based on her personal views.
Cornyn pressed her on the issue shortly before the lunch break.
“When you were representing a member of the Taliban and the Department of Defense identified him as an intelligence officer of the Taliban and you referred to the Secretary of Defense and the sitting President of the United States as war criminals. Why would you do something like that? It seems so out of character,” he said.
In the habeas petitions filed with the U.S. District Court for the District of Columbia, Jackson made a claim for relief on the basis that the respondents had committed war crimes.
The brief argued that “the respondents’ acts directing, ordering, confirming, ratifying, and/or conspiring to bring about the torture and other inhumane treatment” of Khiali-Gul, the detained enemy combatant, constituted “war crimes” or “crimes against humanity in violation of the law of nations under the Alien Tort Statute.”
— Alexander Bolton
White House deputy press secretary Chris Meagher told reporters Tuesday that President Biden watched portions of Jackson’s testimony on Monday and Tuesday “and is proud of the way she is showcasing her extraordinary qualifications, her experience and her even handedness.”
Meagher said that Biden was struck by Jackson’s testimony about law enforcement, her commitment to stay in the judicial lane, and her testimony that “dismantled conspiracy theories” about her record.
“He was also struck by how she swiftly dismantled conspiracy theories put forth in bad faith,” Meagher said. “They have been debunked by numerous fact checks, experts and the record itself.”
Meagher appeared to be referencing Jackson’s testimony about her record on sentencing child sex offenders.
— Morgan Chalfant
Sen. Lindsey Graham (R-S.C.) on Tuesday grew increasingly combative in his line of questioning of Ketanji Brown Jackson.
The South Carolina Republican asked Biden’s Supreme Court nominee about her religious faith, her defense of Guantanamo Bay prisoners and whether she was aware of what he said were left-wing attacks on his preferred nominee to the court.
Graham has been seen as a swing GOP vote on Jackson given his support for previous Democratic judicial nominees, but has signaled he is likely to vote “no” on this nomination.
The Republican senator has also made it clear he disliked Democratic questioning during confirmation hearings for nominees of former President Trump, and has repeatedly sought to underscore a double standard in how nominees from different presidents are treated.
Graham opened his questioning by asking Jackson abruptly about her faith.
“What faith are you, by the way?” he asked.
When she responded she is a nondenominational protestant, Graham then asked: “Could you fairly judge a Catholic?”
When Jackson said she didn’t feel comfortable talking about her personal religious views, Graham then pivoted quickly to how Democrats’ scrutinized Trump’s Supreme Court nominee Amy Coney Barrett’s Catholic faith in 2017 and 2020.
— Alexander Bolton
Jackson called the high court’s landmark 1973 decision in Roe v. Wade recognizing a constitutional right to abortion “settled law,” noting it has been repeatedly reaffirmed by the court and “relied upon.”
Under questioning from Sen. Dianne Feinstein (D-Calif.), Jackson was asked if she agreed with statements that Justices Brett Kavanaugh and Amy Coney Barrett made about abortion law precedent during their confirmation hearings.
Kavanaugh, during his hearing, said Roe “is settled as a precedent of the Supreme Court” and had been “reaffirmed many times” over the intervening decades, most prominently by the court’s 1992 decision in Planned Parenthood v. Casey, Feinstein noted.
Feinstein also said that Barrett, in her 2020 confirmation hearing, vowed to “obey all the rules of stare decisis” — the legal principle of general deference to past decisions — and that she had “no agenda to try to overrule Casey.”
Jackson replied that she agreed with the statements by Kavanaugh and Barrett.
“Roe and Casey are the settled law of the Supreme Court concerning the right to terminate a woman’s pregnancy,” she said. “They have established a framework that the court has reaffirmed and in order to revisit, as Justice Barrett said, the Supreme Court looks at various factors because stare decisis is a very important principle.”
— John Kruzel
Sen. Lindsey Graham (R-S.C.) forcefully criticized legal representation for prisoners at Guantanamo Bay after President Biden’s Supreme Court pick suggested she supported the idea.
“As long as they’re dangerous, I hope they all die in jail if they’re going to go back and kill Americans,” Graham said during Tuesday’s Senate Judiciary Committee hearing. “It won’t bother me one bit if 39 of them die in prison. That’s a better outcome than letting them go.”
The Republican’s comments came in response to statements from Judge Ketanji Brown Jackson, President Biden’s pick for the high court, who said “Sept. 11 was a tragic attack on this country,” but added that she doesn’t regret defending four detainees at the Guantánamo Bay detention facility, which some Republicans have framed as “defending terrorists.”
“The people being accused by our government of having engaged in actions related to this under our constitutional scheme were entitled to representation, were entitled to be treated fairly. That’s what makes our system the best in the world,” Jackson told the committee.
Graham, before quickly swiveling in his chair and exiting the hearing room following his turn to question Jackson, pointed to the make-up of the current government in Afghanistan, which he said proves “this whole thing by the left ain’t working.”
— Dominick Mastrangelo
Jackson rejected criticisms her work as a public defender from 2005 to 2007 and later for the U.S. Sentencing Commission is evidence that she’s soft on crime.
Senate Minority Leader Mitch McConnell (R-Ky.) on Monday questioned whether that experience “will tilt her judgment in favor of convicts” if she serves on the Supreme Court.
But Jackson offered a three-part rebuttal of that criticism, noting that her brother served in Baltimore’s police department and that her uncle served as Miami’s police chief.
“As someone who has had family members on patrol and in the line of fire I care deeply about public safety. I know what it’s like to have loved ones who go off to protect and serve and fear not knowing whether or not they’re going to come home again,” she said in response to a question from Sen. Patrick Leahy (D-Vt.).
She also pointed out that “as a lawyer and a citizen, I care deeply about our Constitution and about the rights that make us free.”
“Criminal defense lawyers perform a service and our system is exemplary around the world precisely because [it] ensures that people who are accused of crimes are treated fairly,” she said.
She added that as a judge, “I care deeply about the rule of law.”
“I know that in order for us to have a functioning society, we have to have people held accountable for committing crimes but we have to do so fairly under our Constitution,” she said. “I know it’s important to have arguments from both sides, to have competent counsel.”
“It doesn’t mean that lawyers condone the behavior of their clients. They’re making arguments on behalf of their clients in defense of the Constitution and service to the court. And it is a service,” she said.
— Alexander Bolton
Sen. Patrick Leahy (D-Vt.) asked Jackson to directly address those whose politics may be different than hers, after mentioning that Jackson has won support from former House Speaker Paul Ryan, a Republican, who is also related to Jackson by marriage.
Jackson took the opportunity to emphasize her impartiality, something she has done throughout Tuesday’s hearing as she faces accusations from some Republicans that she is progressive and a judicial activist.
“I would say that I am committed to serving as an evenhanded Supreme Court justice if I am confirmed by this body,” Jackson said, noting that she serves as a federal judge in Washington, D.C., where some of the most “politically contentious issues” are litigated.
“My record demonstrates my impartiality,” she said.
— Morgan Chalfant
Majority Leader Charles Schumer (D-N.Y.) expressed confidence that Americans will “see right through” GOP criticism of Jackson, and said that she’s on track to be confirmed before the Senate leaves for a two-week break on Aprill 8.
Schumer, speaking from the Senate floor, characterized GOP criticism of Jackson as “flimsy broadsides.” Schumer’s comments come as Jackson is poised to sit through two days of questions from members of the Judiciary Committee, which includes several GOP presidential hopefuls.
“When the facts aren’t on your side, it’s tempting to change the subject and that’s precisely what some Republicans tried to do yesterday. Republicans showed they don’t have a plan to address Judge Jackson on her merits, so they expended a lot of ink and paper pushing arguments that ranged from irrelevant to downright misleading,” Schumer said.
He added that he had “confidence she is on track for final confirmation before the end of this work period.”
— Jordan Cairney
Jackson, under prompting by Sen. Chuck Grassley (R-Iowa), told senators that she does not believe the Supreme Court has been captured by “dark money groups,” despite frequent warnings from Sen. Sheldon Whitehouse (D-R.I.) and other critics that the conservative members of the court have been vetted and heavily influenced by special interest groups.
“I don’t have any reason to believe that’s the case. I have only the highest esteem for members of the Supreme Court. I hope to be able to join if I’m confirmed,” she answered.
Jackson made her comments after Grassley asked her to respond to Whitehouse’s opening statement Monday arguing that the Supreme Court’s conservative majority has been built by a multi-million-dollar influence scheme.
“Hundreds of millions of dollars in right-wing dark money built the current Court majority and still signals its wishes through flotillas of dark-money front groups posing as amici curiae,” Whitehouse said in his statement.
— Alexander Bolton
Jackson offered a forceful defense of her record of sentencing child pornography offenders, pushing back against a recurring Republican attack line leveled against her.
“As a mother and a judge who has had to deal with these cases, I was thinking that nothing could be further from the truth,” Jackson told Senate Judiciary Committee Chairman Dick Durbin (D-Ill.).
— John Kruzel
Jackson reiterated under questioning from Sen. Chuck Grassley (R-Iowa) that she would not weigh in on whether the Supreme Court should be expanded, saying that it was a question for Congress.
While Grassley noted that Justice Stephen Breyer and the late Justice Ruth Bader Ginsburg both took issue with the idea in the past, Jackson said that previous Supreme Court nominees have not weighed in on the debate about adding seats to the court.
“Other nominees to the Supreme Court have responded as I will, which is that it is a policy question for Congress and I am particularly mindful of not speaking to policy issues because I am so committed to staying in my lane of the system,” Jackson said.
Some progressives have called for expanding the court, and the issue is controversial. An independent commission convened by President Biden to study the idea and other potential reforms last year did not take a position on expanding the Supreme Court.
— Morgan Chalfant
Jackson told Senate Judiciary Committee Chairman Dick Durbin (D-Ill.) that while “Sept. 11 was a tragic attack on this country,” she doesn’t have regrets about defending four detainees at the Guantánamo Bay detention facility, which some Republicans have framed as “defending terrorists.”
She framed her defense of the suspects as upholding the nation’s constitutional values.
“The people being accused by our government of having engaged in actions related to this under our constitutional scheme were entitled to representation, were entitled to be treated fairly. That’s what makes our system the best in the world,” she said.
Jackson recalled she was in the federal public defender’s office right after the Supreme Court decided that individuals imprisoned at Guantánamo Bay could seek review of their attention.
“Federal public defenders don’t get to pick their clients. They have to represent whoever comes in and it’s a service,” she said. “You are standing up for the constitutional value of representation and so I represented as an appellate defender some of those detainees.”
She said the George W. Bush administration was using executive authority to detain people in groundbreaking ways, and “there were a lot of questions the court was asking, the Supreme Court.”
“All of our liberty is at stake if we don’t get right in terms of what the executive can do,” she said. “The Supreme Court has recently reaffirmed that the Constitution does not get suspended in times of emergency.”
— Alexander Bolton
In response to the first question from Senate Judiciary Committee Chairman Dick Durbin (D-Ill.), Jackson laid out in detail her judicial philosophy and underscored the that it is “very important that judges rule without fear or favor.”
“Over the course of my almost decade on the bench, I have developed a methodology that I use in order to ensure that I am ruling impartially and that I am adhering to the limits on my judicial authority,” Jackson said. “I am acutely aware that as a judge in our system I have limited power and I am trying in every case to stay in my lane.”
Jackson said that she ensures that she is proceeding from a position of neutrality, evaluates the factual record and interprets and applies the law.
— Morgan Chalfant
Jackson invoked the precedent set by conservative nominee Amy Coney Barrett in 2020 and declined to comment on the prospect of expanding the number of justices on the Supreme Court, a hot-button topic among liberal and conservative activists.
“I agree with Justice Barrett in her response to that question,” she said in response to a question from Senate Judiciary Committee Chairman Dick Durbin (D-Ill.). “My north star is the consideration of the proper role of a judge in our constitutional scheme. And in my view judges should not be speaking into political issues and certainly not a nominee for a position on the Supreme Court.
“So I agree with Justice Barrett,” she added.
Durbin set up the question about court packing by noting that Barrett didn’t express her views about expanding the court during her confirmation hearing in October of 2020 and asserting “we shouldn’t have a separate set of rules for Republican nominees and Democratic nominees.”
Jackson was asked about her views of expanding the court by Senate Minority Leader Mitch McConnell (R-Ky.) in his private meeting with her.
The GOP leader has often noted that the late liberal Justice Ruth Bader Ginsburg and Justice Stephen Breyer have expressed opposition to expanding the court.
— Alexander Bolton
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