Ketanji Brown Jackson Reminded Republicans They Could Fix The Range Of Grievances They Aired

“Congress makes political decisions,” Jackson told members of the Senate Judiciary Committee.

WASHINGTON — Senate Republicans spent the third day of Judge Ketanji Brown Jackson’s US Supreme Court confirmation hearings airing political and policy grievances that she explained she had no firsthand knowledge of and no authority over — like Democrats’ treatment of Justice Brett Kavanaugh when he was a nominee — at times pointing out that they were raising issues that Congress had created or could solve.

Wednesday’s hearing covered much of the same ground that both parties had hashed out in their opening statements and the first round of questions for Jackson a day earlier. The second and final day of Jackson’s testimony offered senators another chance to explore her thinking and her decisions in cases she’d handled as a lower court judge or to drill down on broader points they wanted to make, some of which were related to Jackson’s record and what she’d be like as a justice, and some not.

South Carolina Sen. Lindsey Graham used part of his time to angrily rehash Kavanaugh’s confirmation proceedings, during which a woman who’d known the now-justice when they were both teenagers, Christine Blasey Ford, came forward with an allegation that he attempted to sexually assault her decades ago at a high school party; Kavanaugh denied the claim. Graham initially tried to get Jackson to say how she’d feel about a hypothetical scenario where someone came forward with an accusation against her at the end of her hearings that she couldn’t address; she said she didn’t understand the question.

Graham then directly asked if she’d watched Kavanaugh’s hearings. She said no, and he then had her clarify that she was generally familiar with what happened. When she attempted to shift the focus back to her own nomination, saying she’d appreciated the kindness that members, including Graham, had shown her during one-on-one meetings, he pulled the discussion back to Kavanaugh. Finally, Jackson explained that she didn’t “have any comment on what procedures took place in this body regarding Justice Kavanaugh.”

Graham also focused his time Wednesday on what’s become a leading Republican line of attack against Jackson over some of her sentences for people convicted of child sex abuse images offenses and her work on policy issues related to those types of cases as a member of the US Sentencing Commission. Jackson delved into some of the nuances of these decisions, including that Congress had empowered judges to use a variety of tools besides prison time to achieve the goals of punishment — such as long-term computer monitoring — and that the sentencing guidelines were based on a pre-internet era that didn’t reflect how these offenses were now committed.

Throughout the exchange, Jackson reiterated that these were “horrible” crimes, but explained that judges were trying to apply a “rational” system for sentencing and to find ways of identifying different categories of offenders and sentencing them appropriately. Graham suggested that she did not consider the distribution of child sex abuse materials to be a “bad thing” before outright accusing her of such.

Federal sentencing experts have described Jackson’s sentencing practices in cases of child sex abuse materials as “mainstream,” pointing out that the majority of federal judges go below sentencing guidelines ranges in cases that don’t involve people charged with actually producing content. (Judges aren’t required to follow these guidelines, but they’re meant to ensure some consistency across the criminal justice system.) Near the end of Graham’s questioning, which saw him repeatedly interrupt Jackson, Sen. Dick Durbin, the Democratic chair of the committee, jumped in to point out that Congress had “failed” to update federal criminal laws related to offenses of child sex abuse materials in more than a decade.

Graham asked, “This is our fault?” Durbin replied: “Partially it is, senator. To be honest with you, it is.”

She talked again about the balancing test that Congress had laid out when questioned by Missouri Sen. Josh Hawley about sentences in cases regarding child sex abuse images. Hawley tweeted a thread last weekend highlighting these cases, putting him at the forefront of this line of attack against Jackson. The nominee noted that Hawley’s accusations that her sentences were too low failed to account for all the factors she was required to consider, including arguments from defense lawyers. She called out Hawley for repeatedly asking her questions that he and other Republican members had already posed and that she’d already answered.

Hawley suggested that the fact that the internet had made this type of crime so much easier to commit was a reason to impose tougher sentences. Jackson replied, “Senator, the Congress has every ability to do that.”

North Carolina Sen. Thom Tillis questioned Jackson’s handling of criminal cases more broadly, suggesting she was letting people off too easy: “It seems as though you are a very kind person and that there is at least a level of empathy that enters into your treatment of a defendant that some could view as maybe beyond what some of us would be comfortable with, with respect to administering justice.”

Jackson replied that her approach to sentencing was “within the framework that Congress has provided.” She said that, by law, Congress directed judges to balance a range of factors in crafting a sentence, including a defendant’s history and characteristics, and that Congress had required judges to impose sentences that were “sufficient but not greater than necessary to promote the purposes of punishment.”

She pointed out that she had, in fact, ordered lengthy prison terms in some cases, and that in criminal cases she wanted defendants to feel that they were heard and to spend time talking through the consequences of their crimes in the hopes of preventing them from doing it again in the future.

Tennessee Sen. Marsha Blackburn asked the nominee how she could “stand by” her decision to allow some people convicted of serious crimes, including violent offenses, to be released from prison, referring to cases where Jackson had granted compassionate release petitions during the pandemic. Jackson noted that Congress had made a policy decision to allow people to seek early release in these types of situations.

Iowa Sen. Chuck Grassley asked if Jackson believed nationwide injunctions by judges were constitutional, referring to a common conservative criticism when federal judges blocked the Trump administration from enforcing a number of policies. Jackson replied that the term “nationwide injunction” wasn’t quite right — that when judges invalidated federal agency rules under the Administrative Procedure Act, and those decisions had a nationwide effect, they were carrying out a remedy that Congress had adopted as part of that law.

Louisiana Sen. John Kennedy pressed Jackson to share her views on whether there should be more justices on the Supreme Court, often referred to as “court-packing.” It’s a proposal that’s gained traction among liberal advocacy groups and some Democratic members of Congress as a way to counter the court’s 6–3 conservative majority.

Jackson offered a brief summary of the case for and against adding justices but declined to share her opinion about court-packing, saying she didn’t think it would be appropriate to weigh in on a matter that was ultimately up to Congress. Kennedy pressed her on that answer, asking with skepticism if it wouldn’t make a difference to Jackson if she was one of nine or one of 28 justices.

“I would be thrilled to be one of however many Congress thought it appropriate to put on the court,” Jackson replied.

Kennedy pushed again: “So you’d be okay if it was 28?”

“If that’s Congress’s determination, yes,” Jackson said. “Congress makes political decisions like that.”

Jackson’s confirmation hearing will resume Thursday for a fourth and final day, but she’s done answering questions; the senators will hear last from a string of witnesses speaking for and against her nomination.

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