Ketanji Brown Jackson on Tuesday started a lengthy day of questioning before the Senate Judiciary Committee with prebuttals on some of the issues Republicans are expected to raise about her Supreme Court confirmation.
In a series of questions from panel chair Richard J. Durbin of Illinois, Jackson laid out her judicial philosophy, gave her answer to whether the number of Supreme Court justices should be increased, explained why she doesn’t think she’s lenient on certain child pornography defendants, and provided her reasons for representing detainees at the government’s Guantanamo Bay, Cuba facility.
Each of those areas are expected to get plenty of discussion Tuesday, when each senator gets 30 minutes to ask questions of the 51-year-old federal appeals court judge who appears on track to become the first Black woman on the Supreme Court.
The most explosive of those is allegations is that she is soft on child pornographers and sex offenders, a line of argument laid out most fervently by Missouri Republican Sen. Josh Hawley, who listed seven cases where Jackson handed down a more lenient sentence than federal guidelines would recommend.
But Durbin asked Jackson what was going through her mind when she heard Hawley’s argument, made on Twitter, that the nominee has “a record that endangers our children.”
“As a mother, as a judge who has had to deal with these cases, I was thinking that nothing could be further from the truth,” Jackson said.
Jackson said Congress told judges in a law not to impose the highest possible penalty, but to look for a sentence on those cases that are “sufficient but not greater than necessary” for punishment. Several Republicans said they would ask more on that topic when they get their chance.
Jackson also said it is important to her to make sure that the perspectives of victims are represented in her courtroom, telling defendants at sentencing hearings about long-lasting emotional problems, such as one woman who can’t leave the house or form normal adult relationships.
On her representation of detainees at Guantanamo Bay, Jackson pointed out that the legal landscape was uncertain after the Sept. 11, 2001, and part of that was lawyers who recognized that legal representation for all was an important part of the nation’s values that was at risk.
“That’s what makes our system the best in the world,” Jackson, a former public defender, said of representation for all. “That’s what makes us exemplary.”
And Jackson said she was making legal arguments when the Supreme Court had taken a series of cases to try to understand the limits of executive authority, and that is the role of federal public defenders. “That’s the role of a criminal defense lawyer,” Jackson said. “Criminal defense lawyers make arguments on behalf of their clients in defense of the Constitution and in service of the court.”
Later, Vermont Democratic Sen. Patrick J. Leahy asked her to respond to suggestions that being a federal public defender means she is soft on crime.
Jackson pointed out that she has had family members in law enforcement who have been on patrol and in the line of fire, her brother and two uncles. “I know what it’s like to have loved ones who go off to protect and to serve, and the fear of not knowing whether or not they’re going to come home again because of crime in the community,” Jackson said.
And as a judge she said she cares deeply about the rule of law, and that it is important to have competent counsel on both sides, but that doesn’t mean defense attorneys condone their clients' behavior. “I know in order for us to have a functioning society, we have to have people being held accountable for committing crimes,” Jackson said. “But we have to do so fairly under our Constitution.”
Jackson declined to answer whether the size of the Supreme Court should be changed, pointing to Justice Amy Coney Barrett’s comments in her confirmation hearing that it was a question for Congress. “My north star is the consideration of the proper role of a judge in our constitutional scheme,” Jackson said. “And in my view, judges should not be speaking to political issues, and certainly not a nominee for a position on the Supreme Court.”
That could preview many of the nonanswers that Jackson will give, a tradition for Supreme Court nominees.
Early Tuesday, Jackson also had declined to say whether she supported cameras in the Supreme Court.
On her judicial philosophy, Jackson described a three-step process that starts with clearing the decks and starting from a position of neutrality, and making sure she has all the facts from various perspectives. “I’m clearing my mind of any preconceived notions of how the case might come out. I’m setting aside any personal views,” Jackson said.
She said that when she interprets and applies the law, she pays attention to the constraints on her authority. “The adherence to text is a constraint on my authority,” Jackson said. “Trying to figure out what those words mean as the people who wrote them intended.”
Under questioning from Sen. Charles E. Grassley of Iowa, the top Republican on the committee, Jackson said her whole record in nearly 10 years as a judge is important because it clearly demonstrates she is independent, consistent and impartial. “I don’t think that anyone can look at my record and say that it is pointing in one direction or another, that it is supporting one viewpoint or another,” Jackson said.
Grassley’s questions were not particularly probing, and he started out with a compliment of Jackson’s performance at opening statements Monday. “I got home last night about 8 o’clock, the first thing I heard was my wife’s opinion that you did very good in your opening statement,” Grassley said. “She didn’t have anything to say about my statement.”