Today was the third day of the Senate
confirmation hearing for Ketanji Brown Jackson. The judge faced more questions
about her decisions in cases involved with child pornography and other matters.
According to Fred Lucas, here are the biggest moments from more than nine hours
of her hearing before the Senate Judiciary Committee.
1. ‘Supervise Computer Habits vs. Putting
Them in Jail?’
Sen. Lindsey Graham, R-S.C., pushed
Jackson on why she seemed to think that obtaining child pornography from the
internet warranted a lighter sentence than obtaining it through the mail.
Jackson countered that the sentencing isn’t
just prison time, but includes supervised release that restricts use of the
internet by those convicted in connection with child pornography.
Her reply wasn’t satisfactory to Graham.
“Wait, you think it is a bigger deterrent
to take somebody who is on a computer looking at sexual images of children in
the most disgusting way, is to supervise their computer habits versus putting
them in jail?” Graham asked.
Jackson replied: “No, Senator. I didn’t
Graham shot back: “That’s exactly what you
He added: “The best way to deter these people
from getting on a computer and viewing thousands and hundreds, and over time
maybe millions, … of children being exploited and abused every time somebody
clicks on is to put their ass in jail, not supervise their computer usage.” …
Several Democrats on the committee argued
that Jackson’s sentences in child pornography cases were consistent with those
of other federal judges, including those appointed by Republican presidents.
2. ‘If I Decide … I Am a Woman’
Responding to a question from Sen. Ted
Cruz, R-Texas, Jackson – a member of the board of overseers at Harvard
University – said she would recuse herself from an affirmative action case
heading to the high court that alleges discrimination by Harvard against Asian
Cruz linked the Harvard case with Jackson’s
response Tuesday when Sen. Marsha Blackburn, R-Tenn., asked whether she could
define the word “woman.” Jackson responded to Blackburn: “I can’t .. I’m not a
“I think you are the only Supreme Court
nominee in history who has been unable to answer the question, ‘What is a
woman?’ As a judge, how would you determine if a plaintiff had Article 3
standing to challenge a gender-based rule, regulation, policy, without being
able to determine what a woman was?” Cruz asked.
[Questions then went to Cruz asking if he
could decide to claim that he is a woman, or Hispanic man claiming to be an
Asian man to challenge Harvard’s discrimination. His point was to ask how
Jackson would assess standing if he identified as an Asian man.] So, Jackson
“I would assess it the way I assess other
issues, which is to listen to the arguments made by the parties and consider
the relevant precedents and the constitutional principles involved in making a
determination,” she said.
3. Campus Cancel Culture: ‘Liberal vs.
Sen. Ben Sasse, R-Neb., raised what he
called a “troubling pattern” at law schools.
“There is obviously a trend toward
shouting down and canceling opinions that are outside the left-leaning
mainstream; calls for firing professors, canceling professors, shouting down
and sometimes threatening speakers who bring divergent, diverse opinions,
threats to discipline fellow students,” Sasse said.
Sasse said he has talked to liberal professors
who complained that the debate isn’t conservative versus liberal, “but more and
more liberal versus illiberal.”
“I’d like to ask if you agree that law
school students should be engaging with ideas across the political spectrum,
even those they disagree with, [rather] than trying to shun those different
ideas,” Sasse asked Jackson….
Jackson responded: “It is better in law
schools to make sure there are ideas from all perspectives. In order to make
that happen, they can’t be suppressed.”
4. ‘Hesitate to Speculate’ on Unborn Child’s
Sen. John Cornyn, R-Texas, asked Jackson
“What does viability mean with respect to
an unborn child, in your understanding?” Cornyn asked.
Jackson replied: “Senator, I hesitate to
speculate. I know it is a point in time the court has identified.” …
5. ‘Higher Standard of Liability for Press’
Sen. Jon Ossoff, D-Ga., asked Jackson
about issues involving freedom of the press that could go before the high
“The question of prior restraint has been
litigated. The famous case of the Pentagon Papers in the latter years of the
Vietnam War,” Ossoff said. “All of us on this committee, we recognize the vital
role of press freedom in ensuring the free exchange of ideas to access the
truth and debate in our democracy. How ill you approach cases that implicate
Ossoff referenced the Supreme Court’s 1971
ruling in the Pentagon Papers case. Jackson responded by referring to the 1964
New York Times v. Sullivan case, which set the precedent in libel law that a
public figure, to prevail, has to prove actual malice or reckless disregard of
the truth by the news organization….
The reference to the libel precedent could
be significant, since Justices Clarence Thomas and Neil Gorsuch both have
suggested that the Supreme Court take another look at New York Times v.
“Things that are put out in the press have
to be knowingly false [for a finding of libel]. There is an actual malice test,
because the court was balancing the concerns about libel, people claiming they
were misrepresented in the press, with the need to allow the press to do their
job,” Jackson said. “The overall understanding is that press freedom, again, is
one of the First Amendment freedoms that undergird our democracy.”
6. Court-Packing and the Left
Jackson previously declined to weigh in on
expanding the size of the Supreme Court beyond nine justices, a political issue
of interest to many Democrats. At one point Wednesday, Jackson said she could
see both sides.
“Could you briefly describe to me your
perception of the argument on both sides?” Tillis asked.
Jackson responded that each side has
argued against politicization of the high court.
“I’ve just heard people talking about
putting more justices on the court expressing concerns that the court has
become politicized, that the court has become unbalanced in terms of what
people perceive the views of the justices,” Jackson said of the argument for court-packing.
“I’ve heard arguments about rebalancing the court on that side.”
Of the argument against court-packing, she
said: “Then there is the argument that many on the dais have stated about the
inappropriateness of doing so, the concern that it might lead to some kind of
war every time there is a new president adding justices to the court.” …
Jackson has done nothing to change
the perception that she is soft on child porn perpetrators. She was not
prepared to face the questions from Senators on her record. President Joe Biden
and Jackson thought that charges of “racist” would frighten Republicans. As I
have stated previously, the word “racist” no longer means anything because it
has been charged too many times when it did not apply. Jackson may be the most
qualified person to sit on the Supreme Court; however, her political stance is causing
problems in her hearing.