Supreme Court nominee Judge Ketanji Brown Jackson, President Joe Biden’s pick to replace retiring Justice Stephen Breyer, fielded over a dozen hours of questions during three days of her confirmation hearing before the Senate Judiciary Committee.
Jackson Backs Off From Committed Judicial Philosophy
On various occasions during the hearing, Republicans on the Judiciary Committee pushed Jackson to elaborate on her judicial philosophy, but Jackson backed away from these pronouncements.Many liberal Supreme Court justices express belief in the idea of a “living Constitution,” a theory that holds that the Constitution is an evolving document that adapts to the issues of the time while leaving intact the spirit of the document.
Conservative justices tend toward “originalism”—which says that the Constitution should be interpreted as the Founders interpreted it—and “textualism,” which calls for a relatively strict interpretation of the text of the Constitution itself.
Jackson didn’t commit herself to either, citing instead a “methodology” that she would use on a case-by-case basis to make her decisions.
The vague answer left lawmakers on both sides of the aisle unsatisfied.
Sen. John Kennedy (R-La.) told Jackson she was “very intelligent and very articulate,” but said he was left “still a little uncertain about how you think, how you approach cases, deciding cases.”
“I want to get an idea of what kind of judge you'd be,” Sen. Dianne Feinstein (D-Calif.) said, admitting she also wanted to know “five or six years from now, how will we see you.”
“I want to be the kind of judge like the one I’ve been for the past decade,” Jackson replied.
She said that if confirmed to the Supreme Court, she would “stay in [her] lane” while “interpreting the law.” She also said she would “[rule] consistent with Article III” of the Constitution, which delineates the powers of the federal judiciary.
Jackson said on March 22 that she was “acutely aware that, as a judge in our system, I have limited power, and I am trying in every case to stay in my lane.”
While Republicans were dissatisfied with Jackson’s lack of a specific judicial philosophy, Sen. Sheldon Whitehouse (D-R.I.) suggested it was actually a good thing.
“I didn’t know you needed to have [a judicial philosophy],” he said.
“The Constitution gives you the guide,” he said. Jackson’s lack of a philosophy “doesn’t bother me a bit. A judicial philosophy can be a screen for a predisposition.”
Jackson Questioned on If She Would Overturn Precedent
Jackson also indicated that she would give some deference to precedent, and would use several “factors” in deterring when to overrule precedent, but said that she couldn’t give specific answers outside of the context of a specific case.Sen. Chuck Grassley (R-Iowa), the committee’s ranking Republican member, asked Jackson at one point in the hearing whether the Supreme Court should “overrule a precedent when it’s clear to justices that precedent was wrongly decided.”
Jackson said she would honor the doctrine of stare decisis, which she called “the principle that the Supreme Court uses at the outset—the sort of background rule of judicial maintenance or precedence, in order to have predictability, stability in the law—is the kind of principle the court begins with, if it’s asked to overrule or revisit a precedent.”
She said she would consider several factors in determining whether or not to reverse a precedent, including “the view that the precedent it’s reconsidering is wrong,” “whether there has been reliance on that prior precedent,” “whether the precedent has proven workable,” “whether the cases in the area have shifted such that the precedent itself is no longer on firm foundation,” and “whether there have been new facts, or a new understanding of the facts that give rise to the need to revisit the precedent.”
However, Jackson made clear that she wouldn’t apply the standard to the landmark abortion rights case Roe v. Wade.
That case, which has faced challenges from GOP states, is “the settled law of the Supreme Court,” and Jackson made clear that, if faced with the decision to overturn it, she would rely on the precedent established in Roe v. Wade.
On March 23, Sen. John Cornyn (R-Texas) pushed Jackson on the point, asking her whether the “viability standard” established in Roe v. Wade is “arbitrary.”
“I’m not a biologist,” Jackson replied. “I haven’t studied this. I don’t know.”
“What I know is that the Supreme Court has tests and standards that it’s applied when it evaluates regulation of the right of a woman to terminate their pregnancy,” she said.
Cornyn continued, “Is it your understanding under the current precedent of the Supreme Court that there is a right to abortion up to, and including, the time of delivery of the child?”
‘I’m Not a Biologist’: Jackson on What Is a Woman
When asked by Republicans to give her personal opinion on heated social issues related to gender, Jackson also demurred, saying on various occasions that it would be inappropriate for her to give her opinion, or saying that she couldn’t answer the question.“Senator, I’m not making comments about what schools can teach,” Jackson responded.
Later, citing an opinion by liberal Justice Ruth Bader Ginsburg, who wrote that the physical differences between men and women are inherent, Blackburn asked, “Do you believe that there are physical differences between men and women?”
“Respectfully, I am not familiar with that particular quote and case, so it’s hard for me to comment,” Jackson said.
“Do you interpret Justice Ginsburg’s meaning of men and women as ’male‘ and ’female'?” Blackburn asked.
“Again, because I don’t know the case I don’t know how I‘d interpret it, I’d need to read the whole thing,” Jackson responded.
“Can you provide a definition for the word ‘woman’?” Blackburn asked.
“Can I provide a definition?” Jackson said. “No. I can’t. I’m not a biologist.”
Jackson Pressed on Child Porn Sentencing
During each day of the hearing, Republicans pushed Jackson to explain her track record on giving lighter sentences than guidelines called for on those convicted of possession of child pornography, as part of their claims that the nominee is soft on crime.On March 22, Sen. Ted Cruz (R-Texas) pulled out a graphic displaying the outcomes of several cases overseen by Jackson.
In cases where she had no discretion due to mandatory minimum sentencing laws, Cruz noted, Jackson gave the recommended sentence “because she had no choice.”
But in several cases where she wasn’t subject to mandatory minimums, Cruz showed that Jackson gave sentences well below state recommendations.
In one case, United States v. Chazin, prosecutors asked for a 78- to 97-month prison sentence, but Jackson ultimately gave the defendant a 28-month sentence. In another, U.S. v. Hawkins, prosecutors requested 24 months in prison, but Jackson only gave the defendant three months. In U.S. v. Stewart, the defendant received a 57-month sentence, far below the 97 months requested by the state.
On average, Cruz said, Jackson gave 47.2 percent less time behind bars than prosecutors asked for.
“Do you believe the voice of the children is heard when 100 percent of the time you’re sentencing those in possession of child pornography to far below what the prosecutors asked for?” Cruz asked.
“Yes, senator, I do,” Jackson responded.
Earlier on March 22, Jackson made an effort to defend herself against the charge.
Jackson noted that sentencing guidelines for child porn possession were originally based on child pornography received by mail, but the advent of the internet has created challenges to the old policies.
“The guideline was based originally on a statutory scheme and specific directives by Congress at a time when more serious child porn offenders were identified based on the volume, based on the number of photographs that they received in the mail,” she said.
“That made total sense before ... the internet, when we didn’t have distribution. But the way the guideline is now structured, based on that set of circumstances, is leading to extreme disparities in the system because it’s so easy for people to get volumes of this kind of material now by computers.
“So it’s not doing the work of differentiating who is a more serious offender, the way that it used to. So the commission has taken that into account, and perhaps even more importantly, courts are adjusting their sentences in order to account for the changed circumstances. But it says nothing about the court’s view of the seriousness of this offense.”
However, many Republican lawmakers, including Sen. Lindsey Graham (R-S.C.) were dissatisfied with the response, and questioning on the issue continued well into the March 23 session.
During a line of questioning on March 23, Graham opined that Jackson had failed to properly punish offenders in a way that would deter others, although Jackson insisted that she gave sentences on the basis of the totality of circumstances in the case, including deterrence.
Dems Emphasize Jackson Would Be 1st Black Female Justice
Throughout the hearing, Democrats emphasized that, if confirmed, Jackson would be the first black woman to sit on the Supreme Court. Several Republicans, however, criticized this as hypocritical in view of treatment given by Democrats in the past to GOP federal court appointees such as Janice Rogers Brown.“Not a single justice has been a black woman,“ Judiciary Chairman Dick Durbin (D-Ill.) said. ”You, Judge Jackson, can be the first.
“It’s not easy being the first,” he continued. “Often, you have to be the best. In some ways, the bravest. Many are not prepared to face that kind of heat, that kind of scrutiny, that ordeal and the glare of the national spotlight.”
If Jackson is confirmed, “We can be confident that the court, its role, and its decisions will be more understandable to the American public.”
“The appointment of the first black woman to the Supreme Court—let’s be honest—should have happened years ago,” said Sen. Dick Blumenthal (D-Conn.). Her nomination “is a giant leap into the present for our country.”
“Your service will make the court look more like America.”
Sen. Amy Klobuchar (D-Minn.) agreed, saying the nomination of a black woman is “far past time.”
Meanwhile, Republicans accused Democrats of two-faced attitudes toward would-be black justices.
Graham noted that then-Sen. Joe Biden twice filibustered the confirmation of Brown, President George W. Bush’s nominee to the D.C. Circuit Court of Appeals, a possible stepping stone to move into the Supreme Court.
Cruz also attacked Democrats for blocking Rogers’s nomination.
“And they did so precisely because they wanted to prevent Judge Brown from becoming Justice Brown, the first African American woman [on the Supreme Court].”
