Jackson vocally rebuts GOP criticism of her sex offense sentencing record

Judge Ketanji Brown Jackson on Tuesday defended her application of child pornography sentencing guidelines on Tuesday in her first direct rebuttal to GOP attacks on her record as she seeks a lifetime seat on the Supreme Court.

President Joe Biden's Supreme Court nominee also declined to say whether she supports adding seats to the Supreme Court, describing her stance on expanding the nine-member high court as identical to the one Justice Amy Coney Barrett shared pre-confirmation: That's up to Congress.

“In my view, judges should not be speaking to political issues, and certainly not a nominee for a position on the Supreme Court,” Jackson said under questioning from Senate Judiciary Committee Chair Dick Durbin (D-Ill.) and the panel's top Republican, Iowa Sen. Chuck Grassley, "I agree with Justice Barrett in her response to that question when she was asked before the committee.”

During her confirmation hearing in 2020, Barrett said the number of seats is left “open to Congress” when senators asked her whether the Constitution mentions the size of the Supreme Court.

The first day of senators' questions for Jackson, the first Black woman nominated to the high court, began with Durbin trying to defuse Republican attacks on Jackson on a variety of topics — including incendiary claims that she is soft on sentencing child pornography defendants.

While Jackson has on multiple occasions sentenced such defendants to shorter terms than federal sentencing guidelines recommend, Durbin noted, the vast majority of judges also routinely sentence below those levels in cases not involving any contact with a minor. Nevertheless, Republicans pressed Jackson on the issue throughout Tuesday's session.

In a tense exchange, Sen. Josh Hawley (R-Mo.), read aloud disturbing details of a case involving an 18-year-old who uploaded images of child pornography and noted that, when sentencing that man to three months in prison, the judge had said that she said she felt “sorry” for him.

“Is he a victim here, or are the victims the victim?” Hawley said. “You’re apologizing to him.”

Hawley’s questions appeared to irritate Jackson, who called the teenager’s case “unusual” and defended her view that leniency was appropriate because the bulk of the images the man downloaded were of other young people about his age.

Jackson identified herself as “a judge who is a mom and has been tasked with responsibility and actually reviewed the evidence" in the case at hand describing it as "heinous. It is egregious."

Hawley was one of several Senate Republicans who accused Jackson of being too lenient on child pornography sentencing. Others who raised it included Sens. Ted Cruz (R-Texas), Tom Cotton (R-Ark.) and Mike Lee (R-Utah). Democrats vehemently defended her record, with Sen. Mazie Hirono (D-Hawaii) pointing out that many of Trump’s circuit court nominees had also issued sentences below federal guidelines in child pornography cases.

Earlier in the hearing, Jackson noted that the way guidelines as structured leads to “extreme disparities” in the system. Jackson, a mother of two, called such offenses “horrible” and tried to show that she understands the devastation children experience when adults produce or procure pornography involving minors.

“For every defendant that comes before me and who suggests as they often do that they’re just a looker ... I tell them about the adults who are former child sex abuse victims who tell me they will never have a normal adult relationship because of this abuse,” the nominee said. “I tell them about the ones who say, 'I went into prostitution, I fell into drugs because I was trying to suppress the hurt that was done to me as an infant.'”

Despite the strident attacks some Republican senators have unleashed against Jackson in recent days, Grassley took a highly deferential approach in his first round of questioning of the nominee.

He spent much of his time questioning the appeals court judge about issues he’s championed for years, such as fraud suits that private individuals file on behalf of the government and getting Supreme Court arguments broadcast on television.

When Jackson essentially declined to answer those questions, saying she’d want to look into the issue further and discuss it with other justices, Grassley pronounced himself satisfied with her murky response.

“I think that’s a fair answer at this point,” he said.

Jackson also emphasized her independence by putting some distance between herself and her Supreme Court mentor, Justice Stephen Breyer, whose seat she would fill if confirmed.

When Grassley asked Jackson if she agreed with Breyer that international law is important to interpreting U.S. law, the nominee said no.

“I have nothing but the highest esteem and respect for my former boss, who I’ve spent the better part of the past couple decades calling ‘my justice,’ having clerked for him,” Jackson said. “But I do think the use of international law is very limited in our scheme and in our judging."

Some of the toughest questions Tuesday came from Sen. Lindsey Graham (R-S.C.), who voted to confirm Jackson to the D.C. Circuit just last year, but had pushed for South Carolina district court Judge Michelle Childs to replace retiring Justice Stephen Breyer.

Graham probed Jackson’s defense of Guantanamo detainees, including a brief she filed as a public defender. She emphasized that she was representing her clients when she filed the brief and wasn’t necessarily expounding on her own views.

Graham also lamented the treatment of past GOP judicial nominees, arguing that “there are two standards going on."

Sen. Ted Cruz (R-Texas) also asked Jackson about child pornography sentencing in addition to probing her views on critical race theory, the academic concept that racism has been systematically ingrained in U.S. law and institutions after centuries of slavery and Jim Crow.

“My understanding is that critical race theory is an academic theory that is about the ways in which race interacts with various institutions,” Jackson said. “It doesn't come up in my work as a judge. It’s never something I studied or relied on.”

However, Cruz suggested Jackson’s claim of unfamiliarity with the issue was “hard to reconcile” with her service on the board of D.C.’s Georgetown Day School. The Texas Republican displayed large posters he said were taken from books taught in the school’s curriculum, including one that encourages teaching babies to be “anti-racist.”

Jackson said the school had “special history” of pursuing social justice and was established in the 1940s to have white and Black students educated together at a time when the city’s public schools were segregated.

The first round of questions for Jackson came as Democrats distanced themselves from a prominent outside group backing her.

Senate Republicans signaled they plan to use Jackson’s confirmation hearing as a forum to slam Demand Justice — a liberal organization that advocates for adding seats to the Supreme Court and pushed for Jackson’s nomination — as a pernicious “dark money” group acting as puppet master to her selection.

It’s a playbook Democrats have employed in the past against conservative nominees and the organizations that work to promote them, such as the Federalist Society, but Democrats insist there’s a major difference: They don’t work directly with Demand Justice.

“I honestly don’t know that much about them,” said Sen. Cory Booker (D-N.J.), a member of the Judiciary Committee. “If you pick the ACLU, or the [Center for American Progress] those are groups that we’ve worked with. They’re not to us what the Heritage Foundation and the Federalist Society are to [Republicans]."

“Remind me who they are again?” asked Sen. Tim Kaine (D-Va.) “I can see why Republicans would want to try to create some big bad wolf, but they’re not that big and they’re not that bad. And I don’t think that they’re wolves.”

Nevertheless, the issue came up early in Jackson’s confirmation hearings. When Grassley asked Jackson about whether the high court is “bought” by “dark money groups,” she responded that “I don’t have any reason to believe that that’s the case. I have only the highest esteem for the members of the Supreme Court.” Graham asked Jackson whether she had ever interacted with the group. She replied she hadn’t.

For Demand Justice’s executive director, Brian Fallon, the questions about his group are a “badge of honor.” And despite Senate Democrats downplaying its influence over their party, Fallon didn’t hesitate to characterize Demand Justice as a counter to conservative judicial groups.