‘This is not a normal day.’ Senate begins hearings on Jackson’s historic nomination

Judge Ketanji Brown Jackson professed her love for the country, the Constitution and the “rights that make us free,” as she delivered the final speech of the day after a parade of senators kicked off her Supreme Court confirmation hearings.

Jackson, a federal appeals judge who grew up in South Florida, would make history as both the court’s first Black woman and its first public defender. Of the 115 people to serve on the Supreme Court since its founding in 1790, all but seven have been white men.

The judge who would break barriers as the first Black woman on the court reflected on the Civil Rights struggle her parents and others endured to make this moment possible.

“My parents taught me that unlike the many barriers they had faced growing up, my path was clearer,” Jackson, 51, said as her parents, Johnny and Ellery Brown, watched behind her.

Lawmakers of both parties acknowledged the historical significance of Jackson’s potential confirmation to the Supreme Court, but her background as a defense attorney promises to be a major point of contention through the four days of hearings that began Monday.

“This is not a normal day for America. We have never had this moment before. And I just want to talk about the joy,” Sen. Cory Booker, D-N.J., one of only three Black senators, declared Monday afternoon.

Jackson served as a federal public defender from 2005 to 2007. The two years represent a small fraction of the judge’s lengthy legal career, but those two years came into sharp focus Monday as senators delivered opening statements.

Democrats argued Jackson’s defense experience would add a needed perspective to the court, while Republicans sought to portray Jackson as overly lenient on crime and drew scrutiny to her work on behalf of war-on-terror detainees held at the U.S. Navy base in Guantánamo Bay, Cuba.

“A public defender should be looked at as one of the most honorable roles within our judicial system and yet we have never had a public defender or anyone who’s served as a public defender on our nation’s highest court,” Booker said, noting that the majority of criminal defendants in the country cannot afford an attorney.

Other Democrats hit on similar themes in their opening statements. Sen. Patrick Leahy, D-Vt., who has served in the Senate since 1974, noted his background as a prosecutor and said he was always most confident in the outcome of a case when he knew the defendant had the best possible representation.

“That’s when justice is most likely to be done,” Leahy said. “I would say that Judge Jackson’s background is not a liability to the court. It’s a much-needed asset to the court.”

Supreme Court nominee Jackson is qualified, South Florida Black women attorneys say

Concerns about Guantánamo Bay detainees

Jackson’s tenure as a federal public defender occurred during the height of the post-9/11 fight against terrorism. Four of her assigned clients were Guantánamo Bay detainees.

Among the cases she handled was a challenge to the Bush administration’s classification of detainee Khi Ali Gul as an “enemy combatant.” Jackson had cited the case as one of the most significant of her career when she was confirmed to the U.S. Court of Appeals for the D.C. Circuit.

She drafted a series of motions, including one asking a federal judge to reconsider an order dismissing his case for lack of jurisdiction. The case was ultimately consolidated with other Guantánamo litigation and transferred to a different judge.

Gul was returned to Afghanistan in 2014 with three other detainees.

White House defends Jackson against GOP attacks on sex offense sentencing, Guantanamo work

Many Republicans sought to frame Jackson’s Guantánamo experience as a blemish on her résumé and to portray both the judge and President Joe Biden as soft on crime.

“I’m a bit troubled by some of the positions you’ve taken in arguments that you’ve made representing people who committed terrorist acts against the United States and other dangerous criminals,” said Sen. John Cornyn, R-Texas.

“As someone who has deep respect for the adversarial system of justice. I understand the importance of zealous advocacy, but it appears that sometimes this zealous advocacy has gone beyond the pale.”

Jackson, who noted her brother’s post-9/11 military service, only touched briefly on her experience as a public defender during her opening statement.

“All of my professional experiences including my work as a public defender, and as a trial judge, have instilled in me the importance of having each litigant know that the judge in their case has heard them whether or not their arguments prevail in court,” Jackson said.

Sen. Dick Durbin, the Senate Judiciary chairman and No. 2 Democrat in the Senate, sought to combat what he said were unfair attacks against Jackson during his opening statement.

Scrutiny on sex-crime cases

Sen. Josh Hawley, R-Mo., last week accused Jackson of taking a soft approach on sex offense cases during her nine years as a federal trial court judge. Hawley pointed to seven cases in which Jackson handed down sentences lower than the federal sentencing guidelines.

Durbin quoted a National Review article by former federal prosecutor Andrew McCarthy that called Hawley’s criticism of Jackson “meritless to the point of demagoguery.”

The White House has repeatedly pushed back on the attack, noting that Jackson’s rulings in these cases are in line with other federal judges and accusing Republicans of cherry-picking the cases. Only 30% of non-production child pornography offenders received sentences in 2019 within the federal guidelines, which critics say are outdated, according to the U.S. Sentencing Commission.

Hours later, Hawley said he disagreed with those who believe the federal guidelines should be lessened. “The amount of child pornography has absolutely exploded in recent years,” he said.

He said he chose to publicly highlight his concerns in the lead-up to the hearing rather than springing it on Jackson by surprise.

“I’m not interested in trapping Judge Jackson. I’m not interested in trying to play ‘gotcha.’ I’m interested in her answers,” he said.

Durbin asked his fellow senators to reflect on how history will judge them during this process.

“It’s not easy being the first,” Durbin told the judge. “Often you have to be the best and in some ways the bravest.”

Durbin praised Jackson’s record of excellence, even referencing her background as a debate star at Miami Palmetto High School, something the judge has credited as giving her the tools for later success.

Jackson later paid homage to her late debate coach at Miami Palmetto, Fran Berger, in her opening statement.

“Mrs. Berger believed in me. And in turn, I believed in myself,” she said.