Supreme Court hearing gets heated, as the end is in sight

Republican senators repeat questions on second day of questions for nominee

From left, Sens. Ted Cruz, Josh Hawley and Marsha Blackburn talk before Cruz’s questioning of Judge Ketanji Brown Jackson, President Joe Biden’s nominee to the Supreme Court, on Wednesday.  (Bill Clark/CQ Roll Call)
From left, Sens. Ted Cruz, Josh Hawley and Marsha Blackburn talk before Cruz’s questioning of Judge Ketanji Brown Jackson, President Joe Biden’s nominee to the Supreme Court, on Wednesday. (Bill Clark/CQ Roll Call)
Posted March 23, 2022 at 6:39pm, Updated at 7:45pm

Ketanji Brown Jackson navigated cleanly through a second day of questioning at her confirmation hearing, despite several Republicans who ratcheted up their confrontations with the Supreme Court nominee.

Senate Judiciary Chair Richard J. Durbin announced that the committee will meet Monday to consider Jackson’s nomination. Committee tradition means the panel will likely vote the following Monday, April 4. That would set up a Senate floor vote later that week. The hearing will continue for a fourth day Thursday with outside witnesses.

By late Wednesday, the 51-year-old federal appeals court judge and former federal defender still appeared on track after her portion of the hearing to become the first Black woman on the Supreme Court.

Jackson stayed mostly cool as Republicans such as Sens. Lindsey Graham of South Carolina, Josh Hawley of Missouri and Ted Cruz and John Cornyn of Texas upped the intensity of their approach. They raised their voices, cut off her answers and quarreled with her responses — sometimes to the point that Durbin stepped in to calm it down.

Jackson got most riled as Hawley firmly questioned her once again about several child pornography cases she handled as a federal judge, which became a theme for Republicans who raised concerns that she is soft on crime.

Democrats have disparaged that as inaccurate and a discredited attack, and Jackson is in the mainstream of judges in those types of sentences. They often used their time to defend Jackson, including an impassioned and personal speech from New Jersey Democratic Sen. Cory Booker, the first Black man on the committee, that refocused the hearing on the historic nature of her nomination.

Jackson wiped away tears as Booker spoke about the history of America, the struggle for civil rights, and what her nomination meant for him and the country.

“You faced insults here that were shocking to me — well, actually, not shocking,” Booker said. “Don’t worry. God has got you. And how do I know that? ’Cause you’re here. And I know what it’s taken for you to sit in that seat.”

Earlier, Hawley had brought up one case in which Jackson sentenced a defendant to three months in custody: “Judge, you gave him three months, my question is do you regret it or not?”

Jackson paused. “What I regret in the hearing about my qualifications to be a justice on the Supreme Court, you spent a lot of time focusing on this small subset of my sentences, and I’ve tried to explain many times,” Jackson said.

Eventually she told Hawley that she “followed what Congress authorized to me to do, in looking to the best of my ability at all the various factors that apply, that constrain judges, that give us discretion, but also tells us how to sentence. And I ruled in every case based on all the relevant factors.”

And after another exchange, Jackson apparently grew tired of repeating her answers about how she made the sentencing decisions in these cases. “Senator, I’ve answered this question and I’ll stand on what I’ve already answered,” Jackson said.

She then spent more than 10 minutes explaining that position again, which relates to how computers that make it much easier to get thousands of images have changed the way judges sentence in those types of cases.

Cruz made the most noise in the hearing room, as he went over once again those child pornography cases, which Republicans contend show a troubling pattern of leniency.

Cruz kept cutting off Jackson’s answers, which were similar to answers from the first times she was asked questions about those cases. He said she was not answering the questions.

Durbin stepped in and said: “I would at least give you an opportunity to speak, and you should at least give her a chance to respond.”

That gave Jackson an opening to answer. “Senator, I never said I’m not going to answer. I said my answer,” Jackson said before getting cut off by Cruz again. And Cruz kept asking questions after his time had expired, with Durbin banging the chairman’s gavel louder and louder and Cruz shouting. “Apparently, you’re very afraid of the American people hearing the answer to that question,” Cruz said.

Durbin replied: “At some point you have to follow the rules.”

Graham had one of the more heated exchanges with Jackson, first over one of her rulings in an immigration case that he called “activism” followed by an extended discussion about her sentencing of people who have collected child pornography online. “Wait a minute, judge, you think it is a bigger deterrent, to take somebody who’s on a computer looking at sexual images of children in the most disgusting way, is to supervise their computer habits versus putting them in jail?” Graham said.

“No, senator, I didn’t say versus,” Jackson said.

“That’s exactly what you said,” Graham said, one of several times he interrupted her answers over the next few minutes.

Durbin at one point said: “Senator, your time has expired, and I’m going to give her an opportunity to finally complete an answer.”

Jackson had a back-and-forth with Cornyn about whether she agreed that accusing someone of a crime meant you are calling them a criminal. It referred to a question Cornyn asked Tuesday about a brief Jackson wrote while representing a detainee at Guantánamo Bay, Cuba, that referenced war crimes and, Cornyn had said, called President George W. Bush a “war criminal.”

Durbin took time in the hearing Wednesday to point out that she “was one of several lawyers in 2005 signing for essentially boilerplate habeas corpus petitions on behalf of detainees at Guantánamo that claimed the U.S. government had tortured the man and that such acts constitute war crimes.”

Jackson did not explicitly use the phrase “war criminal,” and under Cornyn’s questioning later, she said that it depends on the circumstances as to whether you’re calling someone a criminal. “I just don’t think that’s credible, judge,” Cornyn said of her answer.

But Jackson’s demeanor didn’t shake, making it likely that her performance at the confirmation hearing did not threaten support from the Democratic caucus, which can confirm her without the help of Republicans if they stick together.

Key Republicans had already predicted Jackson would be confirmed.

Jackson would be filling a vacancy created by the retirement of Justice Stephen G. Breyer, meaning her appointment would not change the conservative 6-3 ideological tilt of the Supreme Court.

Shortly after Cruz’s shouting match with Durbin, Nebraska Republican Sen. Ben Sasse asked Jackson about proposals to film Supreme Court hearings. “We should recognize jackassery we often see around here is partly because of people mugging for short-term camera opportunities,” Sasse said.

And when Cruz spoke again to try to introduce a letter, Vermont Democratic Sen. Patrick J. Leahy spoke up to stop him. “I know the junior senator from Texas likes to get on television, but most of us who have been here a long time try to follow the rules,” Leahy said.