A day after storming off in the midst of the Supreme Court confirmation hearings, U.S. Sen. Lindsey Graham continued to lock horns with Ketanji Brown Jackson Wednesday.
One of the testiest exchanges between the two was centered around Jackson's sentencing record in child pornography cases, where Graham said that Jackson had relented from applying "enhanced" penalties in child pornography cases in which a computer was used to circulate harmful images.
Jackson said that the guidelines and statutes to counter child pornography crimes were created at a time when there were no computers and said that judges will use the available guidelines to calculate the judgments with the "most substantial periods of supervision."
Graham grew more agitated and asked if Jackson believed that it was better to supervise an offender than sending them to jail.
Jackson said that Congress has authorized judges to find multiple ways to achieve the purpose of deterring future cases or punishing a defendant for their crime.
Ketanji Brown Jackson hearings: Graham, Jackson spar over child pornography sentencing: live updates
"What she [Ketanji Brown Jackson] is saying is the reason she's always below the recommendation," Graham said. "It's because she doesn't use the enhancements available to her. She takes them off the table and I think that's a big mistake Judge."
"I think every federal judge should make it harder for someone to use a computer," he continued.
Graham interrupted Jackson multiple times. Senate Judiciary Committee Chair Dick Durbin intervened and asked Graham to let Jackson give her answers and also offered a clarification.
“She is currently not an outlier in sentencing,” Senate Judiciary Committee Chairman Dick Durbin, D-Ill., said. “Seventy percent of federal judges face the same dilemma and wonder why Congress has failed to act.”
Out of time, Graham asked Jackson how she would respond if a letter about her past was brought up on the last day of her hearing. He brought up Brett Kavanaugh's hearing as he had done on all the days of the hearing and said that Kavanaugh was "ambushed".
"How would you feel if we did that to you?" Graham asked.
Durbin said that Jackson had nothing to do with that case and Graham visibly agitated, banged his palm on the table and asked, "I'm asking her what she feels about what y'all did."
Graham also accused Jackson of “activism” in a high-profile immigration case that Republicans say shows she departed from the meaning of the text of federal laws passed by Congress.
Jackson rejected an effort by the Trump administration in 2019 to expand the number of immigrants who could be deported on an expedited basis. Her ruling against the Trump administration was overturned by the D.C. Circuit.
“That, to me, is Exhibit A of activism,” Graham charged. “You reached a conclusion because you disagree with the Trump administration.”
Jackson said she considered two statutes in the case, the one that Graham cited and another that dictates how federal agencies make regulatory decisions. She put additional weight on that second law.
“It doesn't address the fact that Congress has another statute that is presumptively applied in agency cases to tell agencies how to exercise discretion,” Jackson said.
Graham storms off on day two of the hearing
During the second day of Ketanji Brown Jackson's Supreme Court confirmation hearings, Sen. Lindsey Graham grilled the nominee on her faith and judicial record before storming off during a back and forth about detainees in Guantanamo Bay.
Graham has made it clear from the very beginning that he is not supportive of Jackson's nomination over South Carolina's J. Michelle Childs.
On the first day of the hearing, Graham said Childs' nomination was botched by the "radical left" wing of the Democratic Party and that he and Sen. Tim Scott and several other GOP lawmakers would have supported the judge.
"The attacks from the Left against Judge Childs was really pretty vicious, to be honest with you," Graham said to Jackson.
"So you say Judge Jackson, you don't have any judicial philosophy per se. Well, somebody on the left believes you do, or they went and spent the money to have you in this chair," Graham continued, making unverified statements of dark money groups bankrolling Jackson's candidature.
Graham rounded up GOP grievances and said that conservatives are focusing more on philosophy than someone's "race." Graham added that Democrats and the press hounded other nominees Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett during their hearings.
"The media will be your biggest cheerleader. They're in your camp," Graham said. "They have every right to pick who they want to pick. There won't be this constant attack on you like judge Kavanaugh and other conservative judicial appointments.
"They won't be any questioning of where you go to church. What kind of groups you're in in church, how you decide to raise your kids, what you believe in, how you believe in God, nobody's gonna do that," Graham said to Jackson.
"And that's a good thing. So you're the beneficiary of a lot. You're the beneficiary of Republican nominees having their life turned upside down, and it didn't work."
During his confirmation hearing, Kavanaugh was accused of sexually harassing Christine Blasey Ford, a professor of psychology.
Last year, Politico reported that the Federal Bureau of Investigation received 4,500 tips but chose not to investigate it and sent them to the White House instead. In a letter, an FBI official said that she was concerned that the Trump administration may have under investigated or dismissed the tips on Kavanaugh.
GOP grievances on faith and terrorism appear in Graham's line of questioning
A day after telling Jackson that she would not be 'vilified' for her views on her faith, Graham spent a lot of time circling her faith and how she engages with it in her daily life.
"On a scale of one to ten, how faithful would you say you are in terms of religion?" Graham asked.
Jackson said that she was a non-denominational Protestant and that her faith was very important to her.
"But as you know there’s no religious test in the Constitution," Jackson said, continuing that she was "reluctant" to talk about her faith in public interest and the groups who expected her to separate her personal views from her work.
The flashpoint of the hearing came when Graham focused on Jackson's record as a public defender for Guantanamo Bay detainees and how she had referred to the Bush administration as "war criminals" in a brief written years ago and also said that Gitmo, a shortened name for the detention camp, had a high recidivism rate.
Here, Dick Durbin, D-IL, the Senate Judiciary Committee Chair intervened and added context to Graham's statements.
"On the issue of Guantanamo, 39 detainees remain. It’s $450 million per year. Each of these detainees is being held at the expense of $12 or $13 million per year. If they would be incarcerated in Florence, Colorado, the supermax federal prison, the amount would be dramatically less," Durbin said. "Since 2009, with the beginning of the Obama Administration, the repeat rate of Guantanamo detainees is 5 percent.”
Graham directed his ire toward Durbin and asked the Democrat if he supported the detention of Gitmo prisoners.
Several international and domestic human rights groups have said that Guantanamo Bay, though aimed to detain 9/11 suspects, has been in the center of violating the Third Geneva Convention, the International Covenant for Civil and Political Rights (ICCPR), the Convention Against Torture (CAT), and customary international law, which includes violations such as illegal and indefinite detention, torture, inhumane conditions and unfair trials (military commissions).
During the heated argument, Jackson said that her job as a public defender for the detainees was enshrined in the constitution.
In response, Graham said, "As long as they're dangerous, I hope they all die in jail if they're going to go back to kill Americans. It won't bother me one bit if 39 of them die in prison. That's a better outcome than letting them go and if it cost $500 million to keep them in jail, keep them in jail because they'll go back to the fight. Look at the freaking Afghan government made up of former detainees at Gitmo. This whole thing by the left about this war ain't working!”
After that, the senator stormed out and said that Jackson's answers raised "red flags" for him, hinting that he would not vote for the nominee, even as he's voted to nominate her to the Circuit Court before.
If picked, Jackson, a judge on the U.S. Circuit Court of Appeals for the D.C. Circuit, would be the sixth woman, and the first Black woman to preside over the high court.
- USA Today's reporting from the hearings contributed to this story.
This article originally appeared on Greenville News: Sen. Lindsey Graham locks horns, interrupts SCOTUS nominee hearing