WASHINGTON — By late afternoon on the third day of her U.S. Supreme Court confirmation hearing, it appeared Judge Ketanji Brown Jackson had had enough.
Missouri Sen. Josh Hawley, continuing his line of questioning about Jackson’s sentencing decisions in seven cases involving child pornography offenders, was asking Jackson if she regretted the sentence she issued to a man who traveled across state lines to rape a 9-year-old girl.
“What I regret,” Jackson said, “is that in my hearing about my qualifications to be a justice on the Supreme Court, we have spent a lot of time focusing on this small subset of my cases.”
The confirmation hearings were supposed to be civil. That was what Republicans were saying on Capitol Hill last week.
But by the time Wednesday rolled around, the White House was accusing Hawley of cow-towing to conspiracy theorists. Texas Sen. Ted Cruz was arguing directly with Judiciary Chairman Dick Durbin in the middle of the hearing. Vermont Sen. Patrick Leahy was accusing Cruz of just trying to get on television. South Carolina Sen. Lindsay Graham was accusing Jackson of thinking people looking at child pornography was a not bad thing, even though she had repeated throughout the hearing that she found such crimes egregious.
“It was discredited from the start,” Durbin said about the accusations that Jackson was too lenient on child pornography offenders. “Every major news organization that has taken a look at his charges have said there’s no basis for it. Unfortunately it has set a tone which was much different than I expected and that I hoped for.”
The tone was set largely by Hawley — a senator who was never likely to support Jackson in the first place.
It was also unlikely that Hawley would be able to sink the nomination. She had been unanimously approved for the U.S. District Court and had won three Republican votes the previous year in her confirmation to the U.S. Circuit Court. But the platform of a U.S. Supreme Court hearing — where the cameras are on the senators for four days — is one for the politically ambitious to score points and position themselves for future presidential bids.
Democrats have accused him of making the most of that platform.
A week ago, Hawley accused Jackson of “letting child porn offenders off the hook.” It launched a week-long discussion about federal sentencing practices involving child pornography offenders, one that showed that the majority of judges do not sentence them within the federal guidelines, which were written before the internet allowed for the proliferation of images.
Democrats were quick to denounce the claims — calling them a smear against the record of someone who is likely to be the first Black woman to serve on the U.S. Supreme Court. But they also gave Republicans who were unlikely to support Jackson an attention-grabbing issue.
“I do think it’s a line of inquiry that has challenged her inevitability,” said Sen. Kevin Cramer, a Republican from North Dakota. “I don’t want to say she’s not going to be confirmed, I’m almost certain she’s going to be confirmed. But it has definitely challenged it more than I think most people thought might happen.”
During former President Donald Trump’s term, Republicans removed a Senate rule that required 60 votes to approve a Supreme Court nominee. With a majority in the Senate, Democrats have never needed Republican votes in order to approve Jackson.
“Our strategy doesn’t depend on Josh Hawley or any of the other senators who attacked her,” said Karine Jean-Pierre, the White House principal deputy press secretary.
That doesn’t mean they didn’t want Republicans. The Democrats specifically targeted the only three Republicans who voted to confirm Jackson to the U.S. Circuit Court of Appeals for the District of Columbia — Maine Sen. Susan Collins, Alaska Sen. Lisa Murkowski and Graham. Graham, who serves on the Judiciary Committee has appeared unlikely to support Jackson to the Supreme Court, leaving just Collins and Murkowski as possible bipartisan votes.
Neither Collins nor Murkowski have said how they plan to vote. Collins on Wednesday would not say whether Hawley’s claims had influenced her decision making process and repeated that she would not decide how she was going to vote until after the hearings.
For his part, Hawley said he wasn’t trying to influence other senators and was just focused on getting to the bottom of Jackson’s record. Still, the man often mentioned as a future presidential contender pointed out that crime was a significant issue to voters.
“Crime is an important issue,” Hawley said. “It’s important to me as a parent, we’re in the middle of a historic crime wave, I think it’s a topic much on people’s minds, certainly on my mind.”
Hawley’s claims certainly drew attention. Along with drawing barbs from comedians on late night shows, it attracted the attention of the White House, who responded to Hawley several times, including accusing him of catering to Q-Anon, a group of conspiracy theorists that believe several prominent Democrats are pedophiles.
“I just think it’s interesting that for this White House if you want to talk about crime or you want to talk about the threats to children, you’re dismissed as a conspiracy theorist,” Hawley said.
In the hearing itself, the argument just amounted to a back and forth between Republicans and Jackson, where the senators read transcripts from her sentencing decisions. Jackson explained that she takes a number of factors into consideration when making her decision, not just the request from the prosecutor, but also the arguments from the defense and the circumstances of the case.
“This is what our justice system is about,” Jackson told Cruz. “It’s about judges making determinations in meting out penalties to people who have done terrible things.”
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(McClatchy DC reporter Bryan Lowry contributed reporting.)
