What Happened on the Third Day of Senate Hearings?

             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 say ‘versus.’”

Graham shot back: “That’s exactly what you said.

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 Americans.

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 biologist.”

“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 answered.

“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. Illiberal’

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 Viability

Sen. John Cornyn, R-Texas, asked Jackson about abortion.

“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 court.

“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 press freedom?”

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. Sullivan.

“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.