Senate

Five takeaways as Jackson takes tough questions from GOP

Supreme Court nominee Ketanji Brown Jackson answers questions during the second day her Senate Judiciary Committee confirmation hearing on Tuesday, March 22, 2022.
Greg Nash

Judge Ketanji Brown Jackson tangled with GOP senators for roughly 13 hours on Tuesday on the first day of questioning in her confirmation hearings for the Supreme Court.

Republicans aren’t expected to be able to sink Jackson’s nomination unless she makes a significant unforced error during the Senate Judiciary Committee hearings — something that did not appear to happen on Tuesday even as GOP senators launched a bevy of attacks.

Jackson will appear before the committee again on Wednesday. Sens. Thom Tillis (R-N.C.) and Jon Ossoff (D-Ga.) will kick off the hearing, and all senators will get a chance to question her for a second time.

Here are the top five takeaways from Jackson’s first day of taking questions.

Jackson was ready for GOP’s questions

Jackson went on offense early in the hearing, using questions from Sen. Dick Durbin (D-Ill.) to tackle expanding the Supreme Court, her rulings on sex-related cases, and her work on behalf of Guantánamo Bay detainees or outside groups.

The effort appeared aimed at prebutting some of the main lines of criticism that Republicans raised throughout the first day of questions, giving Jackson a first word before she faced questions from more adversarial GOP senators.

It also came after Jackson sat for more than four hours on Monday and listened as GOP senators, most if not all of whom will oppose her, previewed their case against her and their grievances with recent court fights.

There were tense moments between GOP senators and Jackson as well as between members of the committee.

And in some cases, Jackson declined to lean into the line of questioning from Republicans, including when Sen. Tom Cotton (R-Ark.) tried to get her to weigh in on rape, murder, crime and if the country needed more law enforcement officials.

“It’s not that they’re difficult questions. It’s that they’re not questions for me. I am not the Congress,” Jackson said.

Durbin also stepped in to help at times after senators finished questioning Jackson and wrapped up the hearing on Tuesday to respond to GOP claims that were “inaccurate.” 

Jackson says her judicial methodology defies easy label

Jackson’s description of her approach was largely a nuts-and-bolts recitation of steps she follows and a sense of their relative weight in her deliberative process but revealed little as to an overarching philosophy.

Shying away from “a particular label” to define her style, Jackson said she hews to a methodology that begins with assuming a position of neutrality, proceeds with various tools toward a transparent ruling “without fear or favor,” and studiously abides by judicial constraints.

Jackson put special emphasis on the primacy of legal text. She also acknowledged that the 6-3 conservative Supreme Court has increasingly embraced “the originalist perspective in its interpretations” and allowed that she agrees with its tenet that “the Constitution is fixed in its meaning.”

But Jackson also noted the limits of such an approach, pointing to legal concepts such as “unreasonable search and seizure” and “due process” as examples of when a law’s meaning is difficult to determine from text alone.

“When you look at them in the context of history, you look at the structure of the Constitution, you look at the circumstances that you’re dealing with in comparison to what those words meant at the time that they were adopted and you look at precedents that are related to this topic — all those tools judges use and I have used,” she said. 

Unlike the last Supreme Court confirmation, which saw Justice Amy Coney Barrett embrace the identity of an originalist in the mold of the late conservative Justice Antonin Scalia, Jackson offered little help to senators in search of well-worn judicial descriptors.

“If you had to tell the American people who you’re closest to, who is that justice?” asked Sen. Ben Sasse (R-Neb.).

Jackson replied, “I must admit that I don’t really have a justice that I’ve molded myself after.”

Graham highlights GOP anger over previous court fights

Sen. Lindsey Graham (R-S.C.) leaned into lingering anger from Republican senators over previous court fights, arguing there is a double standard between the treatment of Republican nominees and those nominated by Democratic presidents.

Graham went on a stemwinder that touched on several GOP flashpoints, including previous questions about Barrett’s faith and Bush-era judicial nomination fights.

“The reason I’m bringing all this up is it gives me a chance to remind this committee [that] in America, there are two standards going on here. If you’re an African American, conservative woman, you’re fair game to have your life turned upside down, to be filibustered no matter how qualified you are, and if you express your faith as a conservative, all of a sudden, you’re a f-ing nut,” Graham said.

Republicans have repeatedly pointed back to Brett Kavanaugh’s 2018 Supreme Court nomination, which was thrown into chaos after decades-old sexual assault allegations surfaced that he denied.

Graham is one of three GOP senators who voted for Jackson last year to serve on the U.S. Court of Appeals for the D.C. Circuit. But he’s increasingly signaled that he’s a likely no vote on Jackson’s nomination for the Supreme Court seat.

His opposition can’t sink Jackson’s nomination, but it could all but guarantee that Jackson faces a tied committee vote on her nomination. Democrats could still bring her up for a vote on the Senate floor, but it would eat up extra time.

2024 GOP White House hopefuls jockey for attention

Sens. Ted Cruz (R-Texas), Josh Hawley (R-Mo.) and Cotton left little doubt that they are eyeing presidential runs in 2024 after aggressively questioning Jackson about critical race theory, child pornography sentences and rising crime. 

Each senator focused on an issue likely to score points with the GOP’s base and did so with a dramatic flair likely to get some attention in conservative media.

Cruz grilled Jackson about her views on critical race theory, challenging her about a speech she made at the University of Michigan, where she talked about The New York Times’s controversial 1619 Project as well as comments she made at the University of Chicago about how legal work on sentencing marries the law and critical race theory. 

Hawley drilled down on Jackson’s handling of a child pornography case in United States v. Hawkins, in which she sentenced an 18-year-old defendant to three months in prison after federal prosecutors asked for a two-year sentence.

“I just have to tell you, I’m having a hard time wrapping my head about it,” he said.

The tense back-and-forth between Hawley and Jackson provided one of the most dramatic moments of the hearing.

Cotton used part of his time to question her decision to reduce the penalty for a man initially sentenced to 20 years on drug trafficking and firearms charges.

Jackson said she was given flexibility to review the sentence under the First Step Act, which President Trump signed into law, and reduced prison time for nonviolent drug offenders. Cotton opposed the bill. 

Cotton, however, told the nominee with a stare, “You twisted the law, and you rewrote it so you could cut the sentence of a drug kingpin. That’s what you did, judge.”

Jackson keeps nomination on track

Jackson avoided the sorts of major missteps that would throw her nomination into limbo.

GOP senators on the committee pushed Jackson on a host of hot-button issues, including those that light up the party’s base, such as critical race theory, her rulings in child pornography cases and violent crime.

Jackson, however, kept her cool in the 13-hour hearing on Tuesday. And her patience garnered social media attention during an exchange with Cruz, who asked her about “Antiracist Baby,” which argues that babies are taught to be racist or anti-racist and there is no neutrality, being taught at Washington Day School, where Jackson is on the board of trustees.

When Cruz asked Jackson if agreed with this book being taught, Jackson took a long pause before answering.

“I have not reviewed any of those books, any of those ideas,” Jackson said. “They do not come up in my work as a judge, which I am, respectfully, here to address.”

Republicans at times acknowledged that their hours-long grilling wouldn’t ultimately change the outcome of Jackson’s nomination.

Sasse opened his questioning by noting to Jackson that the hearing “very likely the last job interview you’ll ever have.”

Senate Democrats want to confirm Jackson before the chamber starts a two-week break that is scheduled to begin on April 8. Senate Majority Leader Charles Schumer (D-N.Y.) said Tuesday that he had “confidence she is on track for final confirmation before the end of this work period.”

Tags Amy Coney Barrett Ben Sasse Brett Kavanaugh Charles Schumer Dick Durbin Donald Trump Jon Ossoff Josh Hawley Ketanji Brown Jackson Lindsey Graham Supreme Court Ted Cruz Thom Tillis Tom Cotton

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