LIVE COVERAGE: Emotions, tempers run high on day three of Jackson hearings
The Senate Judiciary Committee is holding the second day of questioning for Supreme Court nominee Ketanji Brown Jackson on Wednesday.
Jackson endured a long day of questioning Tuesday, but appeared to make no missteps that would put her confirmation in question. Democrats have the votes to confirm her with no GOP support, though they are hoping she draws a handful of Republican votes.
The Hill will be providing updates on today’s hearing below.
Jackson gave an emotional message to young Americans watching the hearing, urging them to persevere and follow their goals as she recounted her own experience struggling to fit in when she arrived at Harvard University as a freshman.
“I hope to inspire people to try to follow this path because I love this country, because I love the law, because I think it is important that we all invest in our future,” Jackson said when asked by Sen. Alex Padilla (D-Calif.) what her message would be to young Americans. “And the young people are the future, so I want them to know that they can do and be anything.”
Growing visibly emotional, Jackson recalled arriving at Harvard after attending public school in Miami and feeling out of place.
“It was rough. It was different from anything I’d known. There were lots of students there who were prep school kids, like my husband, who knew all about Harvard, and that was not me,” Jackson said, eliciting laughter from those in the hearing room.
“I think the first semester I was really home sick, I was really questioning, ‘Do I belong here? Can I make it in this environment?’ And I was walking through the yard in the evening, and a Black woman I did not know was passing me on the sidewalk, and she looked at me and I guess she knew how I was feeling, and she leaned over as we crossed and said, ‘Persevere.’
“I would tell them to persevere,” Jackson said.
— Brett Samuels
Jackson showed the emotional toll of two days of intense questioning when she wiped away tears late Wednesday afternoon as Sen. Cory Booker (D-N.J.) broke some of the tension in the room by declaring how grateful he feels for her nomination to the Supreme Court.
Booker pushed back hard against Republican colleagues on the committee who relentlessly challenged her sentencing of several child pornography offenders while she served as a district judge and accused her of letting child predators off the hook.
“This is a new low,” Booker exclaimed, asking why Republicans didn’t raise any of the same issues when she was confirmed to the D.C. Circuit Court of Appeals last year.
He called the allegations “meritless to the point of demagoguery” and praised her a mainstream judge.
“The way you have dealt with some of these things, that’s why you are a judge and I am a politician. You have sat with grit and grace and have shown us just an extraordinary demeanor,” he said, warning that Republican attacks focused on just a few criminal cases are setting a “dangerous precedent.”
He noted that he had received letters from advocates of assault victims supporting her nomination.
— Alexander Bolton
Demand Justice, a liberal group supporting Jackson’s nomination to the Supreme Court, announced Wednesday it would run billboard ads in Missouri blasting Sen. Josh Hawley’s (R-Mo.) repeated criticisms of the judge’s sentencing record in a handful of child pornography cases.
The ad calls Hawley a “national embarrassment” and features small excerpts from various news outlets blasting his claims. It pulls out a quote from the National Review calling Hawley’s attacks “a smear,” one from Vox calling the line of questioning “nauseating” and another from The Washington Post asking, “How desperate can you get?”
Hawley has used his questioning time this week to press Jackson on her sentencing of individuals in certain cases related to child pornography. He has noted that those sentences were far below recommendations to suggest Jackson is soft on crime.
White House officials and Democrats have cited numerous fact-checks from various news outlets that have called Hawley’s claims misleading and cherry-picked.
— Brett Samuels
Jackson pushed back at Wednesday’s confirmation hearing against Republicans focusing on her rulings on child porn cases, which has been a significant focus of GOP questions over the past two days.
Sen. Josh Hawley (R-Mo.), one of several GOP senators who have raised the cases, pressed Jackson multiple times on if she regretted a three-month sentence that she gave in one of the cases, saying that he viewed it as a “slap on the wrist.”
“What I regret is that in a hearing about my qualifications to be a justice on the Supreme Court, we’ve spent a lot of time focusing on this small subset of my sentences,” Jackson told Hawley after he asked multiple times if she regretted it.
When Hawley asked Jackson about whether she used sentencing enhancements, Jackson said that she had already answered the question.
“Senator, I’ve answered this question many times from many senators who have already asked me, so I’ll stand on what I’ve already said,” Jackson said.
— Jordain Carney
Sen. Ben Sasse (R-Neb.) made the case against televising Supreme Court cases, arguing the presence of cameras changes behavior and suggesting it contributes to dysfunction in Congress.
Sasse said it should be left up to the Supreme Court justices, not Congress, to determine whether to allow cameras in the courtroom, while acknowledging that a number of senators support doing so.
“I get their position that transparency is a virtue. Transparency is a good thing,” Sasse said before raising the potential pitfalls of more cameras.
“A huge part of why this institution doesn’t work well is because we have cameras everywhere. Cameras change human behavior. We know this. … There’s a whole bunch of things humans can do if they’re not immediately mindful of some distant camera audience that they might be trying to create a soundbite for,” Sasse said.
“I think we should recognize that the jackassery we often see around here is partly because of people mugging for short-term camera opportunities, and it is definitely a second- and third- and fourth-order effect that the court should think through before it has advocates in there who are not only trying to persuade you nine justices, but also trying to get on cable that night or create a viral video.”
Sens. Dick Durbin (D-Ill.) and Chuck Grassley (R-Iowa), the top two members of the Senate Judiciary Committee, last year introduced legislation that would require the Supreme Court to televise proceedings unless a majority of justices agreed that doing so would violate due process rights of those before the court.
— Brett Samuels
Jackson said that if confirmed, she would recuse herself from a dispute the Supreme Court will hear next term over the use of race in admissions at Harvard, where she sits on its governing board.
“You’re on the Board of Overseers of Harvard,” said Sen. Ted Cruz (R-Texas). “If you’re confirmed, do you intend to recuse from this lawsuit?”
“That is my plan, Senator,” replied Jackson, who received undergraduate and law degrees from Harvard.
The legal dispute arose after a conservative-backed group, Students for Fair Admissions, sued Harvard and the University of North Carolina, alleging the schools illegally discriminate against Asian American applicants.
The challengers allege that Asian Americans are disadvantaged in the application process due to receiving lower “personal ratings” and are admitted at a lower rate than white applicants despite having higher test scores on average.
The group has asked the court to overturn Grutter v. Bollinger, a 2003 decision in which the Supreme Court upheld the right of college admissions boards to factor in applicants’ race in order to benefit minority groups and enhance diversity.
Harvard, in court papers, denied the allegation and accused the challengers of mounting a brazen attempt to upend decades of precedent.
In 2019, a Boston-based federal judge rejected the challenge, finding Harvard’s admissions program was lawful. That decision was affirmed by the U.S. Court of Appeals for the 1st Circuit, prompting an appeal to the Supreme Court.
The challengers lodged a similar complaint against admissions practices at the University of North Carolina at Chapel Hill, one of the country’s top-rated public universities. The challengers lost in a federal district court and, on appeal, skipped over an intermediate federal court and petitioned the Supreme Court directly.
The Supreme Court announced in January that it would review the disputes and consolidated them into a single case. Arguments are expected next term, which begins in October.
— John Kruzel
White House officials said Wednesday that President Biden was impressed by Jackson’s handling of tough questioning from Republican senators, especially on the topics of critical race theory and her sentencing of child pornography cases.
“The president was also impressed by how she dismantled bad faith conspiracy theories that have been fact checked by major media outlets … and moderates in both parties are now dismissing them for the fringe smears that they are,” White House deputy press secretary Karine Jean-Pierre told reporters.
Jean-Pierre said that Jackson relies on the law, not academic theories, when asked for a reaction to her back-and-forth with Sen. Ted Cruz (R-Texas) about critical race theory and whether it might influence her work as a justice.
“Our strategy doesn’t depend on Josh Hawley or any of the other senators who attacked her,” Jean-Pierre said. Hawley had raised concerns about Jackson’s handling of child pornography cases and said he lives in fear that his own kids could be exploited by predators such as those he says she “let off the hook.”
“[Biden’s] very proud of how she handled herself yesterday,” she added in response to whether Biden thinks the questions from senators on these topics are inappropriate.
— Alex Gangitano
If Jackson is confirmed, she will join a Supreme Court whose lopsided conservative majority status will often mean she is relegated to the dissenting liberal minority when it comes to hot-button disputes over everything from abortion to voting rights.
But Jackson noted Wednesday that a dissenting opinion — which takes issue with a majority’s judgment or calls out flaws in reasoning — can sometimes sow the seeds of a future decision.
“There are actually many justices in history who have used the dissent mechanism to discuss the law in ways that others find over time to be more persuasive,” she said.
Jackson pointed to the example of Justice John Marshall Harlan, who was the lone dissenter from the court’s infamous 1896 decision in Plessy v. Ferguson that upheld state-imposed racial segregation on the principle of “separate but equal.”
That ruling was later overturned by the court’s landmark 1954 ruling in Brown v. Board of Education, which was argued by Thurgood Marshall, who would later go on to become the nation’s first Black Supreme Court justice.
“According to Justice Thurgood Marshall, (Harlan’s dissent) became the blueprint for Justice Marshall to make arguments that led to Brown v. Board,” Jackson said. “So there is the opportunity for justices to describe their views in ways that become persuasive to others in the future.”
Jackson’s discussion of dissent came during questioning from Sen. Amy Klobuchar (D-Minn.), who cited a comment by the late Justice Ruth Bader Ginsburg about the potential influence of a forceful dissent.
Ginsburg once remarked that a persuasive dissenting opinion can exert pressure on other justices to refine and clarify their argument — and in rare cases, can even garner enough support to supplant the majority opinion.
— John Kruzel
Sen. Patrick Leahy (D-Vt.) called Sen. Lindsey Graham’s (R-S.C.) questioning of Jackson outrageous, saying his actions went against what the Senate should stand for.
“It was going well until this last round of questioning, and it was an aberration of everything the Senate should stand for. You had a Republican member who went way over the time allotted to him, ignored the rules of the committee, badgered the nominee, would not even let her answer the questions,” Leahy told reporters.
“I’ve never seen anything like that, and I’ve been here 48 years,” Leahy added.
His comments came during a break that followed a heated exchanged between Graham and Jackson, during which Graham pressed her on sentencing in child pornography cases.
Leahy questioned if there was a political motive behind the questioning.
“Here we have a highly respected and respectable nominee and to be treated that way, I don’t know what the motivation might be, what political motivation is, but to see the badgering of this woman as she’s trying to testify, I thought was outrageous,” the Vermont senator said.
Jackson’s sentencing in child pornography cases has been a key line of attack for Republicans on the panel. Graham also accused Jackson of “judicial activism” over her handling of an immigration case and interrupted her at multiple points as she was responding to questions.
— Alex Gangitano
When pressed by senators about abortion rights, Jackson said that all precedents — earlier decisions made by the Supreme Court — are entitled to equal respect.
“I’m not aware of any ranking or grading of precedents. All precedents of the Supreme Court are entitled to respect on an equal basis,” she said.
Sen. John Cornyn (R-Texas) questioned her about if District of Columbia v. Heller, a 2008 decision ruling that determined that the Second Amendment protects a right to bear arms, and Roe v. Wade, the 1973 decision recognizing a constitutional right to abortion, are both respected precedents.
“Yes, senator. All precedents of the Supreme Court have to be respected,” she said.
Cornyn pressed Jackson about her opinion on a fetus’s viability based on Roe v. Wade, which allowed for states to restrict abortions post-viability, or 28 weeks into pregnancy.
When asked whether an unborn child could live outside the womb at 20 weeks, Jackson responded that she’s not a biologist.
“What I know is the Supreme Court has tests and standards that it’s applied when it evaluated regulation of the right of a woman to terminate a pregnancy,” Jackson said.
— Alex Gangitano
Sen. Lindsey Graham (R-S.C.) sparked a lengthy and heated exchange with Jackson that garnered grumblings from members of the audience and pushback from multiple Democrats on the committee.
Graham, who was one of the three GOP senators who supported Jackson last year for her influential appeals court seat, questioned Jackson on her sentencing in child porn cases — a key line of attack for Republicans on the committee.
“I think you’re doing it wrong. And every judge who is doing what you’re doing is making it easier for children to be exploited,” Graham told Jackson.
Graham and Jackson went down a lengthy back-and-forth over the use of computers in child pornography cases and the number of photos. Graham appeared concerned that Jackson, as a district judge, wouldn’t apply an enhanced sentence if a computer was used.
“The reason she’s always below the recommendation, I think, is because she doesn’t use the enhancements available to her … and I think that’s a big mistake judge,” Graham said.
At multiple points, Graham interrupted Jackson as she was responding to his questions, sparking frustration from other members of the committee.
“Did you watch the Kavanaugh hearings?” Graham asked Jackson.
When Jackson started to say that she didn’t have a comment on what happened in the Senate, Graham interrupted.
“What did you think about the Kavanaugh hearing?” Graham asked.
Sen. Dick Durbin (D-Ill.), who was visibility frustrated, could be overheard telling Graham: “Would you let her answer.”
When Durbin tried to note that Graham had gone over his allotted 20 minutes, the GOP senator appeared frustrated, saying that “she filibustered every question I had.”
— Jordain Carney
Senate Minority Leader Mitch McConnell (R-Ky.) criticized Jackson’s performance at her confirmation hearing for providing “evasive and unclear” answers and accused her of secretly supporting calls to add more justices to the Supreme Court.
While McConnell previously praised Jackson, the first Black woman nominated to the Supreme Court, as “a sharp lawyer with an impressive résumé,” he turned notably more critical Wednesday.
“She’s declined to address critically important questions and ameliorate real concerns. First and foremost is the simple question of court-packing. The far-left fringe groups that promoted Judge Jackson for this vacancy want Democrats to destroy the court’s legitimacy through partisan court-packing,” he said on the Senate floor. “She was literally the court packers pick for the seat, and she has repeatedly refused to reject their position.”
McConnell noted, as he often does, that both retiring liberal Justice Stephen Breyer and late Justice Ruth Bader Ginsburg have rejected the idea of adding more justices to the nine-member court and asked why won’t Jackson do the same.
“Judge Jackson has refused to follow in the footsteps of Ginsburg and Breyer. She refuses to rule out what the radical activists want. She told Sen. [John] Kennedy [R-La.] she does have an opinion on court-packing, but it’s not a strongly held opinion. In any event, she wouldn’t tell the senator what it was.”
He claimed that Jackson has “made sure to quietly signal openness” to the idea unlike Breyer and Ginsburg, who “slammed the door” on it.
“She even told the committee, quote, ‘I would be thrilled to be one of however many Congress thought appropriate to put on the court,’ ” he said.
McConnell accused Jackson of what he called “a remarkable lack of candor” and criticized her for not describing a fully fleshed-out judicial philosophy.
“The nominee tried to punt by simply restating the most basic elements of a judge’s job description,” he said.
— Alexander Bolton
Jackson used a question from Sen. Dick Durbin (D-Ill.) to defend her work on behalf of Guantánamo Bay detainees, noting the cases were assigned to her and saying it was her job to advocate for her clients.
“Public defenders don’t choose their clients and yet they have to provide vigorous advocacy. That’s the duty of a lawyer,” Jackson said.
“We were assigned as public defenders. We had very limited information … and as an appellate lawyer it was my obligation to file habeas petitions on behalf of my clients,” she added.
Durbin raised the issue during his second round of questions by pointing back to comments made Tuesday by Sen. John Cornyn (R-Texas), who asked Jackson why she would call then-President Bush and then-Defense Secretary Donald Rumsfeld war criminals.
Durbin noted that Jackson didn’t actually use the words “war criminals,” said that the president and defense secretary have to be mentioned in petitions to meet technical hurdles and pointed to coverage from CNN, The Washington Post and The New York Times to argue that Cornyn’s initial question lacked context.
“These charges don’t hold up,” Durbin said.
Cornyn previously shot back at Durbin, noting on Twitter that she had used the phrase war crimes in the filing.
“If you accuse someone of war crimes you are calling them war criminals,” he added.
— Jordain Carney
Jackson on Wednesday said criminal sentencing should involve the goal of rehabilitation and allowing a defendant to eventually reenter society.
She described her sentencing practices as a trial judge during an exchange with Sen. Thom Tillis (R-N.C.).
“What I convey or did when I was a trial judge, as I sentenced people to very lengthy periods of incarceration, was, ‘you are getting your day in court, you are able to say what you want to say, but you have to sit here and listen to my reading into the record the victims statements in this case,’ ” Jackson said.
Jackson, in a lengthy response to Tillis’s question about her treatment of a defendant, said that as a trial judge she would try to communicate directly with defendants, with the goal of public safety in mind because most incarcerated people are eventually released.
“We should be imposing a sentence sufficient but not greater than necessary to promote the purposes of punishment,” she said, adding that she recognized there were people in the prison system who “were bitter, they were angry, they were feeling victimized because they didn’t get a chance to say what they wanted to say.”
She added that in some cases, no one had explained to them how drug crimes are serious crimes and gave an example that some defendants didn’t understand that selling crack cocaine to parents could ruin a child’s life.
“We’re supposed to be sentencing people so that they can ultimately be rehabilitated to the benefit of society as a whole,” she said.
Tillis responded that half of those people, statistically speaking, would return to prison and sometimes due to a worse crime.
— Alex Gangitano
Jackson addressed a blistering opinion in which she ruled against then-President Trump’s bid to block a congressional subpoena for a White House aide’s testimony and her admonishment that “presidents are not kings.”
Responding to a question about the limits of executive power, the nominee discussed the 2019 opinion that was perhaps the most consequential decision of then-U.S. District Judge Jackson’s career up to that point.
The 120-page ruling rejected Trump’s assertion that absolute testimonial immunity barred the testimony of former White House counsel Don McGahn.
At the time, a Democratic-led House panel sought to interview the former counsel as part of a probe into whether Trump had obstructed justice by pressuring McGahn to fire former special counsel Robert Mueller while he investigated Russian interference in the 2016 election.
“Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings,” Jackson wrote in her November 2019 ruling in a circuitous case that would eventually lead to McGahn testifying last year.
Since then, Jackson has joined the U.S. Court of Appeals for the D.C. Circuit. In December, she joined a unanimous three-judge panel that similarly rebuffed a separate, but no less extraordinary, assertion of executive authority by Trump, ruling that the former president could not block the transfer of his White House records to the House committee investigating the Jan. 6 Capitol riot.
— John Kruzel
Sen. Jon Ossoff (D-Ga.) praised Jackson on Wednesday morning for being more willing, in his view, to discuss her legal and constitutional views than some past nominees.
“There’s been a range over time of how willing nominees are to candidly and openly and forthrightly discuss these core matters of constitutional principle in proceedings like this one and a tendency over time to allow less and discuss less, a more restrictive approach,” he said.
“I want to thank you because while you have prudently and in a disciplined way refrained from commenting inappropriately on potential pending case law, you have been willing to engage in a forthright and expansive discussion of these vital principles in a way that I think stands out among some recent nominees,” he added.
Democratic senators were left frustrated and openly criticized Judge Amy Coney Barrett’s reluctance to discuss her constitutional views when she appeared before the Judiciary Committee for her Supreme Court confirmation hearing in October 2020.
Barrett refused to answer questions about her views on abortion rights, the Affordable Care Act or even whether then-President Trump had the power to delay the election.
She declined to say whether National Federation of Independent Business v. Sebelius, which upheld the Affordable Care Act, was correctly decided or even if a case upholding the constitutionality of Social Security was correctly decided.
Similarly, she declined to endorse the reasoning behind Roe v. Wade, which established a constitutional right to an abortion, or Griswold v. Connecticut, which established the right to use contraception.
Ossoff, however, did not name Barrett specifically and added the disclaimer to his praise of Jackson: “That’s not criticism of any recent nominees, it’s an observation about your performance.”
— Alexander Bolton
The Judiciary Committee on Wednesday announced who will testify on the final day of the hearing on Thursday. The American Bar Association’s standing committee on the federal judiciary will testify to their finding that Jackson is “well qualified.”
The committee will then do a second panel of witnesses divided by those testifying at the invitation of Democrats and the invitation of Republicans on the committee.
Those who will testify on behalf of Democrats are Rep. Joyce Beatty (D-Ohio); Risa Goluboff, the dean of the University of Virginia’s law school; Wade Henderson, the president and CEO of The Leadership Conference on Civil and Human Rights; Richard Rosenthal, who served as the personal attorney for former President Obama; and Frederick Thomas, the national president of the National Organization of Black Law Enforcement Executives, or NOBLE.
Those testifying at the invitation of Republicans will be Alabama Attorney General Steve Marshall; Jennifer Mascott, an assistant professor of law professor at George Mason University’s Antonin Scalia Law School; Eleanor McCullen, an anti-abortion activist who was at the center of a 2013 Supreme Court case; Keisha Russell, an associate counsel for the First Liberty Institute; and Alessandra Serano, the chief legal officer of international operations for Operation Underground Railroad.
Jackson will not testify during the final day of the hearing on Thursday.
— Jordain Carney
More than 1,000 current and former public defenders have urged the Senate Judiciary Committee to confirm Jackson in an open letter released Tuesday by Demand Justice, a pro-Jackson advocacy group.
Public defenders from all 50 states signed onto the letter, and included defenders from Washington, D.C., Puerto Rico, Guam and the U.S. Virgin Islands. They wrote that “Judge Jackson is one of the most qualified Supreme Court nominees in history.”
The letter highlights Jackson’s experience, stating that “She clerked at all three levels of our federal courts and would join Justice Sonia Sotomayor as the only sitting justices who have served as both district and circuit court judges.”
The letter also stressed that President Biden’s Supreme Court nominee would bring more trial judge experience than any Supreme Court justice in nearly 100 years, adding that for the past year, “she has served on the U.S. Court of Appeals for the District of Columbia Circuit, which the legal profession has long considered the second highest court in the country.”
“We agree that Judge Jackson’s firsthand experience as a public defender will be an incalculable asset to a Court that has lacked this critical perspective for too long,” it said.
If confirmed, Jackson will become the first Black woman to serve on the Supreme Court.
— Sarakshi Rai
Senators opened the third day of Jackson’s hearing, which descended directly into a squabble.
Sen. Dick Durbin (D-Ill.), the chairman of the Judiciary Committee, used an opening statement to rebut criticism from GOP senators, including several White House hopefuls, during the first day of questioning.
Durbin argued that for some “senators yesterday was an opportunity to showcase talking points for the November election,” specifically pointing to Sen. Josh Hawley (R-Mo.).
Hawley “unleashed this discredited attack,” Durbin said, alleging that Jackson wasn’t in the mainstream of sentencing on child pornography cases.
Durbin added while he thought most senators were respectful during the first day of questions, some GOP senators used it as a “testing ground for conspiracy theories.”
Durbin’s comments sparked pushback from GOP senators on the panel.
Sen. John Cornyn (R-Texas) cut in after Durbin spoke to urge him to stop stepping in after GOP senators speak to contradict their points. Durbin did so multiple times Tuesday, including after questions from Cornyn, Hawley and Sen. Lindsey Graham (R-S.C.).
“You chose to editorialize and contradict the points being made by this side of the aisle,” Cornyn said, adding that “you come back, and you denigrate,” “attack” and “criticize” comments from GOP senators.
Sen. John Kennedy (R-La.) jumped in, saying he also did not appreciate Durbin’s commentary.
“This is America, we have the right to express ourselves,” Kennedy said.
Durbin, however, defended the practice saying it was “chairman’s time,” adding that previous GOP chairmen on the committee have done the same.
Sen. Chuck Grassley (Iowa), the top Republican on the committee, also used an opening statement to push for more documents related to the probation office’s sentencing recommendations on Jackson’s cases.
— Jordain Carney
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