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Ketanji Brown Jackson hearing veers into hot-button topics

Guantanamo Bay, critical race theory find their way into GOP questions

Sen. Ted Cruz, R-Texas, references a page from the children's book "Antiracist Baby" while questioning Supreme Court nominee Ketanji Brown Jackson on Tuesday.
Sen. Ted Cruz, R-Texas, references a page from the children's book "Antiracist Baby" while questioning Supreme Court nominee Ketanji Brown Jackson on Tuesday. (Tom Williams/CQ Roll Call)

Ketanji Brown Jackson on Tuesday rolled unscathed through a marathon day of questioning for her nomination to the Supreme Court, as some of the members of the Senate Judiciary Committee spent time on outside issues peripheral to her qualifications.

Jackson, under the bright lights of the committee room for hours and with few breaks, avoided the kind of misstep that might cost her votes among the Democratic caucus, which does not need votes from Republicans to confirm Jackson as the first Black woman on the Supreme Court.

It took nearly six hours before Jackson even shifted her tone a bit, when Sen. Ted Cruz held up some children’s books related to critical race theory that are part of a curriculum at a private school at which Jackson sits on the board. The Texas Republican had been pressing her for about 15 minutes on what has become a staple of right-wing concerns, asking if Jackson agreed with one book being taught to children that “babies are racist.”

“Senator, I have not reviewed any of those books, any of those ideas,” Jackson said with a firmer tone than any of her previous answers. “They don’t come up in my work as a judge, which I am respectfully here to address.”

Jackson calmly answered questions about her judicial philosophy, experience, approach to cases and more. At other times in the hearing, among other questions about her legal views, Jackson sometimes became a sounding board as senators made points more adjacent to her legal work.

Sen. Charles E. Grassley of Iowa, the committee’s top Republican, asked about the status of the False Claims Act whistleblower law he has championed. “In fact, there’s a very controversial bill right now before the United States Senate on that very subject. It’s fought fraud in the Department of Defense, health care industry, the pharmaceutical industry. $70 billion is pretty important,” Grassley told Jackson. “So, when you get — if you’re approved to be on the Supreme Court and the issue of false claims comes up, I hope you think of Chuck Grassley.”

Rhode Island Democratic Sen. Sheldon Whitehouse went through a presentation about his views on the influence of anonymous money on the Supreme Court. “On an unrelated subject, and it relates to yesterday’s activities,” Whitehouse said to Jackson, “you can relax a moment, your honor. This will not be a question for you.”

Minnesota Democratic Sen. Amy Klobuchar spoke at length about antitrust law, the size of large tech companies and a bill she co-sponsored advancing to the floor. During that time she asked Jackson only if she agreed that a “free enterprise economy” requires “strong and effective antitrust law.”

Republican Sen. Lindsey Graham of South Carolina spent his first questions making a point about how Democrats treated President Donald Trump’s Supreme Court nominees. And Graham, a former military lawyer, pressed Jackson about an amicus brief she wrote in private practice, which argued that the president lacked the constitutional authority to hold enemy combatants at the Guantanamo Bay Naval Base indefinitely without some kind of criminal charges or trial.

The Supreme Court ultimately ruled that habeas corpus rights apply to enemy combatants, and the federal government now engages in periodic interagency reviews to reaffirm their status.

But it exploded into a foreign policy argument with Chairman Richard J. Durbin of Illinois, who quarreled with Graham’s statistics about how many released detainees had committed more offenses and how much it costs to house those detainees.

“I’m suggesting the system has failed miserably and advocates to change this system like she was advocating would destroy our ability to protect this country. We are at war — we’re not fighting a crime — this is not some passage of time event,” Graham said. “As long as they are dangerous, I hope they all die in jail if they’re going to go back and kill Americans. It won’t bother me one bit if 39 of them die in prison — that’s a better outcome of letting them go,” Graham said. “Look at the frigging Afghan government! It’s made up of former detainees at Gitmo. This whole thing about the left about this war ain’t working!” With that, Graham stomped out of the hearing.

Earlier in the hearing, Durbin and Vermont Democratic Sen. Patrick J. Leahy posed questions to allow Jackson to fend off some of the issues Republicans have raised about her Supreme Court confirmation. Jackson laid out her judicial philosophy, gave her answer to whether the number of Supreme Court justices should be increased (“Judges should not be speaking to political issues”), explained why she doesn’t think she’s lenient on certain child pornography defendants, and provided her reasons for representing detainees at Guantanamo.

And Delaware Democratic Sen. Chris Coons helped Jackson clear the air a bit after the questioning from Cruz, who had asked Jackson about a speech she made that referenced the 1619 Project from The New York Times. The Times says that project aims to “reframe the country’s history by placing the consequences of slavery and the contributions of black Americans at the very center of our national narrative.”

Cruz had said the 1619 Project was deeply intertwined with critical race theory and asked Jackson about her understanding of that theory, and Coons wanted to drive home a point. “We are here to evaluate your qualifications, your judicial decision making,” Coons said. “So let me get at a few of these points specifically if I could. I’ve heard references to the 1619 Project and critical race theory, but I didn’t hear that cited in any reference to your opinions as a judge. In your nine years on the bench as a district court judge, more than 570 decisions, have you ever cited the 1619 Project?”

“No, senator,” Jackson replied.

In some of the most anticipated questioning, Hawley grilled Jackson for his full 30 minutes about the details of seven child pornography cases she handled as a federal district court judge. “I’ll be direct with you, I am questioning your discretion and your judgment,” Hawley said about a case where Jackson sentenced an 18-year-old to three months in prison.

Jackson stayed calm but forceful in her responses. At one point, she told Hawley that she appreciated how he had looked at the details of the cases and whether she takes them seriously or has some reason to handle them in either a different way than her peers or a different way than other cases.

“And I assure you that I do not,” she said. “That if you were to look at the greater body of not only my more than 100 sentences, but also the sentences of other judges in my district and nationwide, you would see a very similar exercise of attempting to do what it is that judges do, attempting to take into account all of the relevant factors and do justice individually in each case,” Jackson said.

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