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Ketanji Brown Jackson outlines approach to sentencing defendants

On the Senate floor, Minority Leader Mitch McConnell lays out GOP line of opposition

Judge Ketanji Brown Jackson, President Joe Biden’s nominee to the Supreme Court, testifies during her Senate Judiciary Committee confirmation hearing on Wednesday.
Judge Ketanji Brown Jackson, President Joe Biden’s nominee to the Supreme Court, testifies during her Senate Judiciary Committee confirmation hearing on Wednesday. (Bill Clark/CQ Roll Call)

Ketanji Brown Jackson appeared more comfortable behind the witness table Wednesday as she started a second day of questioning in her Supreme Court confirmation hearing.

North Carolina Republican Sen. Thom Tillis, who did not get a chance to ask questions on the first day that lasted 13 hours and ended after 10 p.m., told Jackson he hoped she got some rest last night. “Very little, senator, but that’s all right,” Jackson said, ahead of what will be another long day as senators get a second, more abbreviated, round of questions.

When Tillis suggested Jackson showed a level of empathy in her treatment of defendants that could be viewed as “beyond what some of us would be comfortable with in administering justice,” Jackson’s response took on a tone that was among the most insistent of the week.

Jackson, a former federal defender, said as a district court judge she spent time conveying to defendants why they were being sentenced in the hope that they could understand the harm they did, take responsibility and not do it again. Many defendants “were bitter, they were angry, they were feeling victimized because they didn’t get a chance to say what they wanted to say, because no one explained to them that drug crimes are really serious crimes, no one said, ‘Do you understand that there are children who will never have normal lives because you sold crack to their parents and now they are in a vortex of addiction? Do you understand that, Mr. Defendant?’” Jackson said.

Jackson appeared to build on confidence that she gained over the final hours Tuesday. Arkansas Republican Sen. Tom Cotton pressed Jackson about drug crime statistics and said in response to one of her answers that not many Americans think these are tough questions.

Jackson pressed back. “It’s not that they’re difficult questions. It’s that they’re not questions for me. I am not the Congress,” Jackson said. “I am not making policy around sentencing. My job is to look in a particular case and decide what the penalty should be within the range that Congress prescribes.”

And when Tennessee Republican Sen. Marsha Blackburn, the last questioner, asked her to provide a definition for the word woman — a lead-in to questions about transgender athletes — Jackson said she couldn’t. “Not in this context, I’m not a biologist,” Jackson said.

Judiciary Chair Richard J. Durbin, to start the hearing Wednesday, told Jackson that she showed grace under pressure. “This is a tough assignment, and many have risen to the challenge, but none as well as you did yesterday,” Durbin said.

Meanwhile, on the Senate floor Wednesday, Majority Leader Charles E. Schumer called her performance Tuesday “simply impressive” and said she remained “measured and poised and thoughtful as she worked through yesterday’s grueling series of questions.”

“Republicans tried to land a blow, but Judge Jackson kept her cool,” Schumer said. “By the end of the day it was obvious why the judge’s nomination has won the support of everyone from law enforcement to conservative judges to scores of peers throughout her career,” Schumer said.

Also on the floor, Minority Leader Mitch McConnell foreshadowed the Republican response to the hearings. McConnell called Jackson’s answers “evasive and unclear” and said she has declined to address important questions and concerns, particularly about calls to increase the size of the Supreme Court.

And McConnell said Jackson “displayed a remarkable lack of candor” when asked about her judicial philosophy and “tried to dodge questions about constitutional interpretation by claiming that she did not have enough experience.”

“Under questioning from Sen. Cotton, Judge Jackson said it would be inappropriate for her to comment on the proper durations of criminal sentences as this was a policy matter for legislators and not judges,” McConnell said. “But at other times she justified her own past leniency by explaining judges have huge amounts of discretion and latitude on sentencing criminals.”

“So either subjective questions about sentencing are fair game for the judicial branch or they’re not. Certainly the nominee cannot have it both ways, so today Judge Jackson will have another chance,” McConnell said.

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