WASHINGTON — Judge Ketanji Brown Jackson, President Joe Biden’s historic Supreme Court nominee, weathered a long day before a Senate committee on Tuesday, fending off charges by Republicans that she was too lenient in her sentencing of defendants.
During a marathon 13-hour day of questioning, the first Black woman nominated for the high court remained composed and patient.
But it made for an unusual and uncomfortable day for a Supreme Court pick.
Usually, senators probe a nominee’s views on major constitutional controversies like abortion, race, guns or presidential powers.
Instead, several GOP senators pressed Jackson on issues the Supreme Court is unlikely to play a significant role in, such as the proper prison sentence for someone convicted of possessing child pornography or the appropriate way to teach children about racism in elementary schools.
Those issues are, however, major themes in Republicans’ 2022 campaign strategy, and Tuesday’s line of questioning seemed to have less to do with defeating Jackson’s confirmation — which appears assured — and more focused on November’s midterm election.
GOP Sens. Ted Cruz of Texas, Josh Hawley of Missouri and Tom Cotton of Arkansas — all believed to have presidential ambitions — pressed the judge on her sentencing decisions involving several defendants convicted on pornography or drug trafficking charges.
Cotton said a “bunch of elite lawyers” think criminal punishments are too harsh, and suggested Jackson agreed with them.
Cruz accused Jackson of having a “record of activism concerning sexual predators,” from her time at Harvard Law School to her time as a trial judge.
Jackson said such assertions were incorrect, unfounded or misleading.
“Nothing could be further from the truth,” Jackson told Hawley when he raised a similar charge. The mother of two daughters described child pornography as a “sickening and egregious crime.”
Jackson said she was offended by the insinuation that she was soft on crime. She spoke of her two uncles, who worked as police officers in Miami, and her brother, who was a police detective in Baltimore.
“I have had family members who went on patrol and in the line of fire,” she said, ensuring the panel that crime and violence “are not abstract concepts or political slogans” to her.
Defenders of Jackson noted that her sentencing was in line with that of other judges for similar defendants.
Jackson repeatedly told the GOP senators that many of their questions related more to policy issues that Congress should decide. It’s important to “stay in my lane” as a judge, she said.
“Judges interpret the law, not make the law,” she said.
In several instances, when responding on specific cases, she explained to lawmakers that her hands as a judge had been tied by sentencing guidelines passed by Congress, or as a result of the judicial discretion provided by Congress.
"Critical race theory" also made an unusual appearance. At one point, Cruz held up enlarged photos of books used by children at Georgetown Day School that he said emphasized the importance of race.
The books are “filled with critical race theory,” Cruz claimed, noting that Jackson and her husband, Dr. Patrick Jackson, were on the board of the private school in Washington.
Jackson said she understood critical race theory as something taught or discussed in universities and law schools, not elementary schools. The theory involves how racial inequality can be built into legal systems.
“I have not reviewed those books,” she said of Cruz’s examples. Moreover, she said, critical race theory “doesn’t come up in my work as a judge.”
All of the committee’s Democrats strongly supported Jackson and came to her defense.
“I think she’s doing phenomenally well,” Sen. Cory Booker, D-N.J., said in an interview. “Her poise, her grace under fire — she’s showing the country who she is. I’m impressed.”
The White House also reiterated Biden’s support for Jackson and praised her appearance before the committee.
The hearing took another odd turn when Sen. Lindsey Graham, R-S.C., asked Jackson about her religious faith and how often she attended church. He said his probing on the issue was only to illustrate why it was improper to focus on a nominee’s faith.
Graham was referring to Sen. Dianne Feinstein, D-Calif., saying, “The dogma lives within you” during a 2017 appeals court confirmation hearing for Amy Coney Barrett, then a Notre Dame law professor. Feinstein was sharply criticized for the remark, and Barrett was confirmed to the appeals court.
In 2020, Barrett won confirmation to the Supreme Court without her religious views becoming a major factor in hearings.
Jackson, 51, is a U.S. appeals judge for the District of Columbia, a post she was confirmed to last year with bipartisan support, including support from Graham.
She previously served eight years as a federal district judge handling trials in Washington, and before that was a federal public defender.
In addition to being only the third Black nominee to the Supreme Court, she would be the first justice to have worked as a public defender. Republicans repeatedly pressed her about her representation of criminal defendants in that capacity.
Jackson declined to give a response on the issue of increasing the number of justices on the Supreme Court, telling the Senate Judiciary Committee that too is a policy issue left to Congress.
Sen. Charles E. Grassley, the top Republican on the panel, noted that retiring Justice Stephen G. Breyer and the late Justice Ruth Bader Ginsburg, both liberals, said so-called court packing is a bad idea.
“Respectfully, senator, other nominees to the Supreme Court have responded as I will, which is that it is a policy question for Congress,” Jackson replied.
The court currently has a 6-3 conservative majority, which wouldn’t change with Jackson succeeding Breyer.
Democrats can confirm Jackson to the high court with only Democratic votes, but the White House and Democratic leaders are hoping she’ll be confirmed on a bipartisan basis, as she has for three previous posts.
