Supreme Court Nominee Ketanji Brown Jackson Confirmation Hearings: Dick Durbin Decries Republicans’ “Offensive Treatment” In Their Questioning — Update

UPDATE, 4:38 PM PT: The Senate Judiciary Committee wrapped up nearly 24 hours of testimony and questions of Supreme Court nominee Ketanji Brown Jackson with the committee’s chairman decrying what he called “offensive treatment” by some of the Republican members.

“My colleagues promised a fair and respectful hearing,” Durbin said. “Most, including my Republican colleague Senator Grassley, followed that admonition. He always does. But there were a few obvious glaring exceptions. I’m sorry for that. But your patience, dignity and grace in the face of what was some frankly offensive treatment is a real testament to your judicial temperament.”

Durbin was likely referring to the questioning of Jackson by Sen. Ted Cruz (R-TX) and Sen. Josh Hawley (R-MO), both potential 2024 presidential contenders, and some Democrats also expressed their frustration over Sen. Lindsey Graham (R-SC). All three zeroed in on Jackson’s sentencing record of defendants convicted of accessing child porn images.

By the time that Hawley, in his second round of questioning, pressed her on the issue, she showed a bit of frustration.

He asked her again about one specific case, in which she sentenced an 18-year-old defendant three months in prison, and whether she regretted it.

“Senator, what I regret is that in a hearing about my qualifications to be a justice on the Supreme Court, we have spent a lot of time focusing on this small subset of my sentences and I’ve tried to explain many times…”

Cruz and other senators called for the release of pre-sentencing probation reports in such cases, but Durbin rejected the request, calling it a step “way too far” that raises privacy issues for victims.

The hearings themselves were surprising for the number of contentious moments, especially those focused on Jackson’s sentencing record, even as Democrats complained that some of their colleagues were grandstanding or trying to settle old scores for past Supreme Court hearings.

But there were, for Jackson, some emotional high points. She faced a friendlier line of questioning from Sen. Cory Booker (D-NJ), who said that a African American woman came up to him while he was jogging on Wednesday morning, “and she just wanted to touch me because I am sitting so close to you, and tell me what it meant to her to watch you sitting where you are sitting.” He noted that she did not get to where she is via left wing groups or dark money but “by being like Ginger Rogers said, “I did everything Fred Astaire did but backwards in heels.”

 

Judge Jackson gets emotional as Sen. @CoryBooker discusses how and why she was nominated to the highest court in the land. pic.twitter.com/m1UIpDlrJC

— CSPAN (@cspan) March 23, 2022

PREVIOUSLY: Ketanji Brown Jackson faced another round of questions — and another tense series of exchanges with Sen. Lindsey Graham (R-SC).

Graham focused on treatment of past GOP nominees, including Brett Kavanaugh, while also pressing Jackson on her sentencing of defendants convicted of possession of child porn. The White House has accused Republicans of “Q-Anon signaling” in their line of questioning, while noting that Jackson’s record is similar to that of conservative judges.

Jackson tried to make the point that the change in technology and has changed the way judges weigh sentences. In the past, consideration was given to the number of images that perpetrators received through the mail.

“On the Internet, with one click, you can receive, you can distributed tens of thousands. You can be doing this for 15 minutes, and all of the sudden you are looking at 30, 40, 50 years in prison…” she said.

“Good,” Graham interrupted. “Absolutely good. I hope you are.”

“Allow her to finish, please,” said the committee’s chairman, Sen. Dick Durbin (D-IL).

“I hope you go to jail for 50 years if you are on the Internet trolling for images of children in sexual exploitation situations,” he said. “So you don’t think that’s a bad thing. I think that is a horrible thing.”

She then said, “All I am trying to explain is that our sentencing system, the system that Congress has created, the system that the Sentencing Commission is the steward of, is a rational one. It is a system that is designed to help judges do justice in these terrible circumstances, by eliminating unwarranted disparities, by ensuring that the most serious defendants get the longest periods of time, and when modes of the commission of a crime change such that in two seconds, someone can receive or distribute thousands of images, that is no longer, and this is what the commission found their studies, an indicator of a person who, relative to other people, has committed this crime in a more aggravated way.”

Heated exchange between Supreme Court Nominee Judge Ketanji Brown Jackson and Sen. @LindseyGrahamSC on child pornography sentencing. pic.twitter.com/PFQJforFmJ

— CSPAN (@cspan) March 23, 2022

Durbin later said that it was up to Congress to update the guidelines and then decide whether sentences should be mandatory.

Graham then walked out, as he did on Tuesday.

Durbin defended Jackson earlier in the hearing. “You have done what 80% of the judges have done. You are in the mainstream of sentencing when it comes to child pornography cases,” he said. He noted that Sen. Josh Hawley (R-MO), who questioned Jackson about the issue on Tuesday, supported the nomination of a district judge who ‘has done exactly what you did.”

“Your nomination turned out to be a testing ground for conspiracy theories and culture war theories. The more bizarre the charges against you and your family, the more, I understand, the social media scoreboard lit up yesterday. I am sorry we have to go through this. These are not theories that are in the mainstream of America, but they have been presented here as such.”

In contrast to Tuesday, when cable news networks provided extensive carriage of the hearing, they moved on to other stories on Wednesday.

PREVIOUSLY, Tuesday PM: Sen. Josh Hawley (R-MO), who has attacked Judge Ketanji Brown Jackson as delivering too lenient of sentences in cases of child porn possession, devoted much of his time to the topic as she defended her decisions.

Hawley pointed specifically to a case involving an 18-year-old who Jackson sentenced to three months in prison, below the prosecutors’ recommendation and that of sentencing guidelines. He specifically pointed to comments that she made during the defendant’s sentencing hearing.

Jackson, however, said that she was given discretion to consider a number of factors as a judge, including the probation office’s recommendation.

“Senator, I don’t have the record of the entire case in front of me,” she responded. “What I recall with respect to that case is that unlike many child pornography offenders that I had seen as a judge and that I was aware of on the Sentencing Commission, this particular defendant had just graduated from high school and some of …the materials that he was looking at were older teenagers. Were older victims. The point Senator is that — you said before the probation office is making recommendations and they do so on a case-by-case basis. That is what Congress requires.”

She added, “Sentencing is a discretionary act of a judge. But it is not a numbers game.”

Judge Jackson to Sen. Josh Hawley: "As a judge who is a mom and had been tasked with the responsibility of actually reviewing the evidence…it is heinous. It is egregious…all of the offenses are horrible…but the guidelines…are being departed from by the government." pic.twitter.com/3XoUvvBmUd

— CSPAN (@cspan) March 22, 2022

After Jackson’s exchange with Hawley, White House Deputy Press Secretary Andrew Bates tweeted that the Missouri senator was engaging in an “embarrassing, QAnon-signaling smear.” That is a reference to a common far right conspiracy theory linking Democrats to pedophilia rings, debunked beliefs that have led to dangerous situations. In 2016, a man fired a gun in Comet pizza in northwest D.C., maintaining that he was investigating a child trafficking ring.

The White House has defended Jackson’s record in such case as in line with other judges, including those nominated by President Donald Trump.

PREVIOUSLY, Tuesday AM: Supreme Court nominee Ketanji Brown Jackson sighed and paused for six seconds as she sought to answer a question from Sen. Ted Cruz (R-TX).

Cruz was pressing Jackson on what has become a GOP talking point during the confirmation process — that she somehow endorses “critical race theory.” Republicans have repeatedly used the term as they try to target the left.

Jackson is on the board of Georgetown Day School, and in his questioning Cruz charged that the school’s curriculum was “filled and overflowing” with critical race theory, and then held up a book, Antiracist Baby, along with poster-sized blowups of book illustrations.

“Do you agree with this book that is being taught to kids that babies are racist?” Cruz asked.

Then, Jackson answered, “Senator…” before pausing for six seconds, “I do not believe that any child should be made to feel as though they are racist or though they are not valued or though they are less than, that they are victims, that they are oppressors. But what I will say is that when you asked me whether or not this was taught in schools, critical race theory, my understanding is that critical race theory as an academic theory is taught in law schools, and to the extent that you were asking the question, I understood you to be addressing public schools.” Georgetown Day, she said, is a private school, just as is Trinity Schools, of which Amy Coney Barrett was a member of the board.

Then, when Cruz asked if she agreed that Georgetown Day does teach critical race theory, she said that the board of Georgetown Day “does not control the curriculum, the board does not focus on that. That is not what we do as board members, so I am actually not sure.”

“Senator, I have not reviewed any of those books, any of those ideas. They don’t come up in my work as a judge, which I am respectfully here to address,” she said.

The term “critical race theory” refers to the idea that racism is ingrained into all parts of American society — and it’s become a key element as Republicans press cultural issues. The term was front and center in Glenn Youngkin’s successful campaign for governor of Virginia last year, as he warned that it was moving into “all schools across Virginia.” Politifact ruled the statement false, finding that although it was discussed by educators, there was no evidence that it was being taught in all schools. Many Democrats, meanwhile, say that Republicans are being alarmist about what is an academic theory, or that they are using it to root out any discussion of race in schools.

Later in the hearing, Sen. Chris Coons (D-DE) tried to bring Cruz’s line of questioning back to Jackson’s service on the court, giving her the chance to say that she has never written an opinion that referenced critical race theory or relied upon it.

On CNN, Abby Phillip remarked, “Her pause at the beginning of the answer really said it all. Just the level of frustration…this is exactly the kind of thing that some Republicans have been concerned about, because one of the problems with Senator Cruz’s questioning of her along these lines is that he asked her about Georgetown Day School and it gave her an opportunity to explain that when she talks about social justice in relation to Georgetown Day School, it is because that school was founded explicitly to integrate schools at a time when the law required public schools be racially segregated.”

Sen. Cruz's question: "Do you agree with this book that is being taught with kids that babies are racist?" https://t.co/9V8PIHPtOW

— CSPAN (@cspan) March 22, 2022

PREVIOUSLY, Tuesday, 7:44 AM PT: News networks again carried the confirmation hearing of Supreme Court nominee Ketanji Brown Jackson — with some breaks for other news — as she faced what was to be a very long day of questioning from members of the Senate Judiciary Committee.

The committee’s chairman, Sen. Dick Durbin (D-IL), started the queries and very quickly asked about GOP attacks on her judicial record, namely one from Sen. Josh Hawley (R-MO) that she was lenient on sentences for child porn sex offenders.

“As a mother and a judge who has to deal with these cases, I was thinking that nothing could be further from the truth,” she said. “These are some of the most difficult cases that a judge has to deal with because we are talking about pictures of sex abuse of children. We’re talking about graphic descriptions that judges have to read and consider when they decide how to sentence in these cases.”

She said that congressional statute “doesn’t say impose the highest possible penalty for this sickening and egregious crime. The statute says, ‘Calculate the guidelines, but also look at various aspects of this offense and impose a sentence that is sufficient but not greater than necessary to promote the purposes of punishment.”

She said that “in every case, when I am dealing with something like this, it is important to me to make sure that the children’s perspective, the children’s voices, are represented in my sentences. And what that means is that for every defendant who comes before me and who suggests, as they often do, that they’re just a looker, that these crimes really don’t really matter, they’ve collected these things on the internet and it’s fine, I tell them about the victim statements that have come into me as a judge. I tell them about the adults who were former child sex abuse victims, who tell me that they will never have a normal adult relationship because of this abuse. 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. And the one that was the most telling to me that I describe, at almost every one of these sentencings.”

She said that she tells of a story of one victim who has developed agoraphobia and “cannot leave her house because she thinks that everyone she meets will have seen her pictures on the internet. They’re out there forever.”

Jackson added that the sentencing guidelines were structured before internet distribution, when lengthier sentences were imposed on offenders based on the volume of material they received in the mail. Now, she said, “it’s so easy for people to get volumes of this kind of material now by computers, so it’s not doing the work of differentiating who is a more serious offender in the way that it used to.” She said that the U.S. Sentencing Commission “has taken that into account, and perhaps more importantly, the courts are adjusting their sentences in order to account for the changed circumstances, but it says nothing about the court’s view of the seriousness of this offense.”

Jackson also declined to answer whether she thinks that additional members should be added to the Supreme Court, noting that Amy Coney Barrett also was asked the same question and declined to weigh in on a political issue.

Sen. Lindsey Graham (R-SC) questioned Jackson on the work she did as a public defender representing detainees at Guantanomo Bay. After an exchange with Durbin, Graham grumbled, “This whole thing by the left about this war ain’t working.” He then walked out.

Tense exchange between Senators Graham and Durbin following Sen. Graham's time questioning Supreme Court nominee Judge Ketanji Brown Jackson. pic.twitter.com/R9Aa5gU9JS

— CSPAN (@cspan) March 22, 2022

PREVIOUSLY, Monday, 12:59 PM PT: Ketanji Brown Jackson said in her opening remarks to the Senate Judiciary Committee that she takes judicial independence “very seriously” and decides cases from a “neutral posture.”

Avoiding any of the issues that Republicans have raised about her nomination, she instead devoted much of her 10-minute opening remarks to her personal background, including how her father inspired her when he was a law student.

“My very earliest memories are of watching my father study. He had his stack of law books on the kitchen table while I sat across from him with my stack of coloring books,” she said.

Her parents, Johnny and Ellery, were present for the hearing.

Among those who introduced Jackson was Thomas Griffith, a retired conservative appellate judge, who said that Jackson had “time and again” demonstrated impartiality.

“Although we did not always agree on the outcome the law required, I respected her diligent and careful approach, her deep understanding and her collegial manner,” he said.

But there are doubts of just how many Republicans will support Jackson’s nomination. Sen. Lindsey Graham (R-SC) lamented that Joe Biden had not nominated Michelle Childs, a federal judge from his home state, who also was on the president’s short list. Graham voted for Jackson when she was nominated to the D.C. circuit. His comments make it seem less likely that he will do so again, as he told her that she was the choice “sponsored by the most radical elements of the Democratic Party when it comes to how to be judge…You were their choice.” Other Republicans on the committee, including Sen. Ted Cruz (R-TX) and Sen. Marsha Blackburn (R-TN) also attacked Jackson as a figure of the radical left during their opening statements, as did Sen. Josh Hawley (R-MO), who revived his claim that she is soft on child porn sex offenders. That claim earned him Three Pinocchios from The Washington Post’s fact checker. The AP and ABC News also found his claims misleading.

PREVIOUSLY, Monday AM: Supreme Court nominee Ketanji Brown Jackson’s confirmation hearings kicked off Monday with opening statements from Judiciary Committee members, as networks prepared to cover the weeklong proceedings with an eye for recognizing when they’ve become a bit of a slog.

That came shortly after the committee’s chairman, Sen. Dick Durbin (D-IL) and top Republican, Sen. Chuck Grassley (R-IA), delivered their opening remarks. Then each of the committee members was to deliver up to 10 minutes of opening remarks each. CNN and MSNBC then cut away for analysis, while Fox News had already featured legal scholar Jonathan Turley offering commentary with a split screen of the proceedings.

The network plan coverage when Jackson delivers her remarks, but that is not expected until later this afternoon. NBC, CBS and ABC also plan special reports, while networks streaming services will provide ongoing coverage.

At the hearing Durbin invoked Abraham Lincoln as he told Jackson that she was “one of Mr. Lincoln’s living witnesses of an America that is unafraid of challenge, willing to risk change, confident of the basic goodness of our citizens, and you are living witness to the fact that in America, all is possible.”

If confirmed, Jackson would be the first Black woman to serve on the Supreme Court.

Durbin also tried to head off what is likely to be a GOP line of attack on Jackson: That her record shows she is “soft on crime.” He called the charge “unfair,” and cited fact-checking stories in the Washington Post, ABC News and CNN. Sen. Josh Hawley (R-MO), one of the committee members, wrote on Twitter last week that Jackson “has a pattern of letting child porn offenders off the hook for their appalling crimes, both as a judge and as a policymaker.”

But the Post, for example, found that Hawley was taking her past statements out of context. His attacks on her time on the U.S. Sentencing Commission, the Post noted, ignored the bipartisan nature of its recommendations on lowering the mandatory minimum sentences in two types of child porn offenses.

Grassley, meanwhile, devoted much of his opening remarks to complaining about how Democrats behaved toward judicial nominees during Donald Trump’s presidency. When Grassley was Judiciary Committee chairman, Brett Kavanaugh faced what ended up being one of the most contentious confirmation hearings in Senate history, and the opening day was marked by outbursts from protesters in the hearing room. By contrast, there was no interruption in opening remarks on Monday, albeit there also were no visitors allowed given the Covid restrictions.

Jackson will face questions from committee members on Tuesday and Wednesday, and witness testimony on Thursday. Democrats have the votes to confirm her if all members of the caucus stick together, and the question is whether Jackson garner many Republican votes in a process that has grown ever more partisan.

The hearings are being held in the same Hart Senate Office Building room as the initial Kavanaugh hearings, but there is much less media space given social distancing.