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.

What Happened on the Second Day of Confirmation Hearings?

            Members of Senate Judiciary Committee started asking questions of Judge Ketanji Brown Jackson in the Supreme Court hearing. She has served as a judge on the D.C. Circuit Court of Appeals since June. Fred Lucas saw seven big moments in Day Two of the hearings.

1. Child Porn Sentences and ‘Extreme Disparities’

[Senator Josh Hawley, R-Mo] last week highlighted seven cases, and again in remarks Monday, in which Jackson as a District Court judge gave sentences to child sex offenders that were lighter than what prosecutors requested and federal sentencing guidelines recommend….

2. ‘Never Studied Critical Race Theory’

Sen. Ted Cruz, R-Texas, pressed Jackson about her views on critical race theory. He referenced a speech in which she cited critical race theory, which holds that someone is either an oppressor or oppressed based on his or her race.

Having noted earlier that they knew each other at Harvard Law School, Cruz said critical race theory originated at their alma mater. He asked Jackson to define it from her point of view.

“It is an academic theory that is about the ways in which race interacts with various institutions,” Jackson replied. “It never comes up in my work as a judge. It’s never something I’ve studied or relied on. It wouldn’t be something I would rely on if I was on the Supreme Court.”

Cruz said critical legal theory initially was viewed as class-based struggle. Critical race theory grew out of that and frames every conflict as race based.

“Do you think that’s an accurate way of viewing society?” Cruz asked.

“Senator, I don’t think so. I’ve never studied critical race theory. I’ve never used it,” 

Jackson replied. “It doesn’t come up in the work that I do as a judge.

Cruz followed up: “With respect, I find that a curious statement because you gave a speech in April 2015 at the University of Chicago.”

In that speech, Jackson at one point said, “Sentencing is just plain interesting because it melds together myriad types of law, criminal law, and of course constitutional law, critical race theory.”

Cruz asked Jackson: “You described in a speech to a law school what you were doing as critical race theory….

3. ‘Couldn’t Let the Terrorists Win’

Under questioning, Jackson explained her work as a federal public defender on behalf of terrorism suspects held at the U.S. detention facility at Guantanamo Bay, Cuba….

At the same time, Jackson said, she didn’t have full say in who she defended….

4. ‘Agree With Justice Barrett’ on Court-Packing

Several Republican senators raised the prospect of court-packing on Monday, when Jackson had little time to speak….

Jackson said she had the same view as Justice Amy Coney Barrett expressed in her Senate confirmation hearing about court-packing, which many Democrats advocate as a way to ensure the Supreme Court is more liberal by increasing the number of justices….

 

5. ‘Bought by Dark Money’?

Several Republican senators brought up the fact that the liberal legal group Demand Justice had promoted Jackson for the Supreme Court….

6. Abortion as ‘Settled Law’

The Supreme Court recently heard arguments in a case that has the potential to overturn Roe v. Wade, the 1973 decision that legalized abortion across the nation.

The high court previously upheld its Roe decision in the case of Planned Parenthood v. Casey.

Sen. Dianne Feinstein, D-Calif., immediately began asking about maintaining abortion. Feinstein noted that two justices, Barrett and Brett Kavanaugh, have said Roe is settled precedent.

“I do agree with both Justice Kavanaugh and Justice Barrett on this issue,” Jackson said.

“Roe and Casey are the settle law of the Supreme Court concerning the right to terminate a woman’s pregnancy.”

7. ‘Fairly Judge a Catholic?’

During her opening remarks Monday, Jackson thanked God and talked openly about her faith.

On Tuesday, Sen. Lindsey Graham, R-S.C., asked Jackson about her faith.

“Senator, I am Protestant, nondenominational,” she replied.

“Could you fairly judge a Catholic?” Graham asked.

Before she could finish her answer, though, Graham answered for her.

“I think the answer would be yes. I believe you can. I’m just asking this question because – how important is your faith to you?”

Jackson responded: “Personally, my faith is very important, but as you know, there is no religious test in the Constitution under Article 6. It’s very important to set aside one’s personal views.”

Graham later followed by referencing a comment by Feinstein, who scrutinized Barrett’s Catholic faith during her confirmation hearing for a seat on the 7^th U.S. Circuit Court of Appeals.

“How would you feel if a senator up here said of your faith, ‘The dogma lives loudly within you and that’s of concern’? How would you feel if someone on our side said, ‘You attend church too much for me,’ or, ‘Your faith is a little bit different to me,’ and they suggest it would affect your decision?”

Jackson said, “Senator, I um …”

Graham jumped in: “I would if I were you. I found it offensive when they said it about Judge Barrett.”

Graham went on to recall other attacks by Democrats, such as their opposition to Justice Samuel Alito and their two-year filibuster to prevent Judge Janice Rogers Brown from serving on the D.C. Circuit.

            Democrats asked Republicans to treat Jackson with respect during the hearings. This is ironic because of the disrespect shown by Democrats to the three Justices appointed during the Trump administration. Republicans are “jabbing” the Democrats even while showing Jackson respect.

What Is Happening in the Senate Judiciary Hearings?

            Senate hearings on federal Judge Ketanji Brown Jackson’s nomination to the Supreme Court this week. During the presidential election, President Joe Biden promised to nominate “a black woman” to the Supreme Court even though his promise was racist. He kept his word when he nominated Jackson. The opening day of hearings focused on Jackson’s record and her historical nomination. According to Fred Lucas, the twenty-two members of the Senate Judiciary Committee will discuss four matters during the hearings. 

1. ‘Historic Nature’ or Double Standard?

Democratic senators on the committee hailed the fact that Jackson is the first black woman nominated to serve on the Supreme Court….

Sen. Lindsey Graham, R-S.C., pointed out that Democrats had a very different view when they opposed President George W. Bush’s nomination of California Supreme Court Justice Janice Rogers Brown, a black woman, to the U.S. Circuit Court of Appeals for the District of Columbia and blocked confirmation of Miguel Estrada, a Hispanic, who had previously served in a number of legal capacities including as an assistant U.S. attorney, to the same circuit. [Emphasis added.]

Democrats’ opposition to Brown and Estrada was widely seen as driven by the fact that both were considered at the time as likely future contenders for seats on the U.S. Supreme Court.

“So, if you’re a Hispanic or African American conservative, it’s about your philosophy. Now it’s going to be about the historic nature of the pick,” Graham said. “This is going to be about your philosophy. Bottom line is that it is about philosophy when it is someone of color on our side. It’s about ‘We’re all racist if we ask hard questions.’ It’s not going to fly with us. We’re used to it by now; at least I am. So, it’s not going to matter a bit. We are going to ask you what we think you need to be asked.”

Sen. Ted Cruz, R-Texas, added to the historical record.

“As [then-]Sen. Ted Kennedy said in writing at the time, the Democrats filibustered Miguel Estrada, quote, ‘because he is Hispanic.’ They were explicitly racial,” Cruz said.

“If you are Hispanic or African American, and you dare depart from their political orthodoxy, they will crush you. They will attack you. They will slander you. They will filibuster you.”

2. Judicial Philosophy ‘Without Fear of Favor’

Delivering her opening remarks for the hearing, Jackson thanked God for her life.

“While I’m on the subject of gratitude, I must also pause to reaffirm my thanks to God, for it is faith that sustains me at this moment,” she said. “Even prior to today, I can honestly say that my life has been blessed beyond measure.” …

She didn’t detail her judicial philosophy, but explained her broad view.

“I decide cases from a neutral posture,” Jackson said. “I evaluate the facts, and I interpret and apply the law to the facts of the case before me, without fer or favor, consistent with my judicial oath.”

3. Sentencing in Child Pornography Cases

Durbin sought to cut off the likely focal point of Republican opposition to Jackson’s nomination.

“We’ve heard claims that you’re, quote, ‘soft on crime.’ These baseless charges are unfair,” Durbin said. “They fly in the face of pledges my colleagues made that they would approach your nomination with civility and respect.”

Sen. Josh Hawley, R-Mo., named seven child pornography cases where Jackson, as a U.S. district judge, handed down sentences below what the prosecutor had requested and federal sentencing guidelines recommended….

[Hawley’s] point: It’s difficult against this backdrop to argue that the sentencing guidelines are too harsh or outmoded, that we should be treating child porn offenders more leniently than the guidelines recommend.

Hawley said Jackson deserves the chance to explain her record….

4. Demand Justice, ‘Dark Money’ Influence

Several Republican senators brought up the role of Demand Justice, a left-wing legal group founded by former Hillary Clinton aide Brian Fallon under the financial sponsorship of liberal megadonor Arabella Advisors.

Demand Justice included Jackson on its Supreme Court shortlist for Biden. The group has also advocated for court-packing to advance Democratic policies on the court.

            Democrats are “whitewashing” Jackson in claiming that she is “an accomplished, experienced, highly qualified nominee to the Supreme Court.” At the same time, Republicans are striving to show that Jackson is soft on crime. In the end, I expect that Jackson will be appointed to the Supreme Court and that she will not make difference in the liberal-conservative slant of the court. I hope that Republicans ask difficult questions, but I also hope that they show respect to Jackson – something that Democrats did not show to Brett Kavanaugh.