Jackson parries Hawley's child porn questioning, noting Congress never updated sentencing guidelines

President Biden’s Supreme Court nominee Ketanji Brown Jackson rebutted a line of questioning by Sen. Josh Hawley, R-Mo., on Tuesday that asserted she had been too lenient in her role as a judge on child pornography offenders, by pointing blame back at Congress over its inability to update old federal sentencing guidelines.

Hawley, who teed up the attack on Jackson last week, this time focused on the case of an 18-year-old man who uploaded videos of young children being raped and molested. He pressed Jackson on why she only gave the young man, who had just graduated high school when the videos were uploaded, only 3 months in jail.

Judge Ketanji Brown Jackson listens to questions from U.S. Sen. Josh Hawley
Judge Ketanji Brown Jackson listens to questions from Sen. Josh Hawley at her confirmation hearing on Tuesday. (Elizabeth Frantz/Reuters)

“I want to try to understand, is it your view that society is too hard on sex offenders?” Hawley said. “This whole discussion is about why you are only giving him three months.”

Hawley noted that the federal prosecutors in the case recommended two years in jail for the defendant and that sentencing guidelines called for between 97 and 110 months in jail. Jackson responded that key sections of the law setting those guidelines, the PROTECT Act of 2003, had been invalidated by a 2005 Supreme Court ruling which changed the sentencing requirements from mandatory to advisory — giving the judge discretion.

Sen. Josh Hawley
Sen. Josh Hawley listens during the confirmation hearing of Judge Ketanji Brown Jackson's nomination to the Supreme Court. (Elizabeth Frantz/Reuters)

“I understand that Congress wanted the guidelines to be mandatory, the Supreme Court decided in 2005 they couldn’t be,” Jackson said. “And Congress has not come back since then to make them mandatory.”

After Hawley finished his questioning, Senate Judiciary Chairman Dick Durbin, D-Ill., jumped to Jackson’s defense.

“Congress doesn’t have clean hands in this, we haven’t touched this now for 15, 16, 17 years,” Durbin said. “I think we have to accept some responsibility for that.”

Senate Republicans have largely treated Jackson gently this week, given that her nomination is expected to sail through the Democratic-controlled Senate and that it does not shift the balance of power on the court, where conservatives already hold a 6-3 majority.

But a handful of Republicans on the panel, mostly those viewed as possible White House contenders in 2024, have hammered away at Jackson for being “soft on crime” and excoriated her rulings on child porn cases.

The White House, via deputy press secretary Andrew Bates, hit back at Hawley with a series of fact checks and called the attack a “QAnon-signaling smear.”