President Joe Biden’s Supreme Court nominee, Ketanji Brown Jackson, faced another round of questions from lawmakers on the Senate Judiciary Committee during the third day of her historic confirmation hearings.
Throughout the hearings, Jackson has defended her experience and credentials amid sharp questioning – and criticism – from Republican senators on her judicial philosophy and legal record.
On Wednesday, Jackson told the committee that if confirmed to the Supreme Court, she plans to recuse herself from a high-profile Harvard affirmative action case and elaborated on her views on the importance of the separation of powers and limits on executive branch authority in US government.
As part of the public vetting process, Jackson has refuted claims from Republicans that she is weak on crime by stressing her concern for public safety and the rule of law, both as a judge and an American.
She has responded to concerns raised by Republicans over the potential for judicial activism by arguing that she approaches her work in an impartial way and emphasizing that it would be inappropriate to impose any kind of personal opinion or policy preference.
The nominee has also defended elements of her tenure in the legal profession that have attracted particular scrutiny – and criticism – from Republicans, including past defense work on behalf of Guantanamo Bay detainees and sentencing in child pornography cases.
Tuesday featured a marathon first round of questioning. On Wednesday, each senator on the panel was given the opportunity to ask additional questions for 20 minutes.
The confirmation hearings for Jackson – who would be the first Black woman to serve as a Supreme Court justice, if confirmed – began on Monday with lawmakers and the nominee delivering opening statements. The hearings will wrap up on Thursday when the American Bar Association and outside witnesses deliver testimony.
Democratic Sen. Jon Ossoff of Georgia on Wednesday brought up a notable opinion in which Jackson wrote that “Presidents are not Kings.” Ossoff asked Jackson to explain what she meant and what she believes are the most important defenses to guard against the abuse of executive power.
Jackson has twice ruled against former President Donald Trump or his administration in cases concerning the disclosure of information from his White House.
The first was the 2019 opinion she penned as a district court judge in which she wrote that “Presidents are not Kings” while rejecting the Trump administration’s argument that White House counsel Don McGahn was absolutely immune from a congressional subpoena.
Jackson replied to Ossoff’s question by saying that the United States government is set up with a system of checks and balances to “prevent tyranny.” She called the separation of powers “crucial to liberty,” and said that principle informs her approach to the law.
“That means for me that judges can’t make law, judges shouldn’t be policymakers, that’s a part of our constitutional design, and it prevents our government from being too powerful and encroaching on individual liberty,” she said.
Republican Sen. Ted Cruz of Texas said at the outset of his questioning Wednesday that Harvard is being sued for what he described as “its explicit, and in my view, egregious policy of discriminating against Asian Americans.”
Cruz then pointed out that Jackson is a member of the Harvard Board of Overseers and asked whether she would recuse herself from the lawsuit if she were to be confirmed to the Supreme Court.
Jackson responded that she would recuse.
“That is my plan, senator,” she said.
In January, the Supreme Court announced it will reconsider race-based affirmative action in college admissions. The justices said they will hear challenges to policies at Harvard and the University of North Carolina that use students’ race among many criteria to decide who should gain a coveted place in an entering class.
The cases would be heard in the session that begins next October, with a decision likely by June 2023.
Wednesday featured more criticism from Republican senators directed toward the nominee over her record as a number have suggested she has been too lenient in sentencing child pornography cases.
Jackson has forcefully rebutted the concerns, referring to the issue as a “sickening and egregious crime.”
Republican Sen. Josh Hawley of Missouri pressed Jackson over one case where he said an 18-year-old offender was sentenced to three months, which he described as a “slap on the wrist.”
“Do you regret it?” Hawley repeatedly asked the nominee.
Jackson said, “Senator, what I regret is that in a hearing about my qualifications to be a justice on the Supreme Court, we’ve spent a lot of time focusing on this small subset of my sentences.”
Hawley interjected, “You regret that we’re focusing on your cases? I don’t understand.”
“No, no, no,” she said, adding that they are “very serious cases.”
As Hawley continued to ask whether she regretted the sentence, Jackson said, “Senator, I would have to look at the circumstances.”
“You know the circumstances,” Hawley said. “You lived it, as you’ve emphasized to this committee over and over. You’ve lived it, right?”
Jackson responded, “In every case, I followed what Congress authorized me to do in looking to the best of my ability at all of the various factors that apply, that constrain judges, that give us discretion, but also tell us how to sentence. I ruled in every case based on all of the relevant factors.”
“So you don’t regret it?” Hawley asked again, before saying, “It sounds like the answer is no, but I want to tell you I regret it. I regret that you gave him only three months.”
GOP Sen. Lindsey Graham of South Carolina engaged on Wednesday in another tense line of questioning on the subject.
At one point, he pressed Jackson over whether she believes sentencing has a deterrent effect.
“Yes, senator, deterrence is one of the purposes of punishment,” Jackson said at one point. But, she added, “Congress has directed courts to consider various means of achieving deterrence. One of them, as you said, is incarceration. Another as I tried to mention, was substantial periods of supervision.”
Graham later said, “Folks, what she is saying, the reason she is always below the recommendation, I think, is because she doesn’t use the enhancements available to her. She takes them off of the table. I think that’s a big mistake, judge.”
An in-depth CNN review shows that Jackson has mostly followed the common judicial sentencing practices in these kinds of cases. And a group of retired federal judges – including two Republican appointees – told the Senate Judiciary Committee on Monday night that Jackson’s record on child pornography sentencing is “entirely consistent” with the records of other judges across the country.
Sen. Patrick Leahy, a Vermont Democrat, emerged from the hearing riled up about Graham’s questioning, telling reporters it went “beyond the pale.”
“As the dean of the Senate, as the longest serving member of this body, I’m just distressed to see this kind of a complete breakdown in what’s normally the way the Senate’s handled,” he said.
Senate Judiciary Chairman Dick Durbin, an Illinois Democrat, opened Wednesday’s hearing by saying that some senators have used the hearings as “an opportunity to showcase talking points for the November election.”
Durbin went on to say, in a criticism aimed at Republicans, that the nomination has “turned out to be a testing ground for conspiracy theories and culture war theories.”
Texas Sen. John Cornyn, a Republican member of the committee, jumped in say it was unfortunate that Durbin had chosen to editorialize and “contradict the points being made by this side of the aisle.”
A number of Democrats have so far used the time allotted to them for questioning to give Jackson a chance to push back on Republican criticisms. Democrats have also consistently emphasized the historic nature of Jackson’s nomination, while arguing that the depth and breadth of her experience, including as a public defender, would add a valuable and unique perspective to the high court.
Senate Democrats are hoping to move swiftly to a confirmation vote by the full Senate once the hearings have concluded. They can confirm Jackson’s nomination to the Supreme Court without Republican support if every member of their caucus votes in favor, which appears on track to happen, and Vice President Kamala Harris breaks a tie. It is not yet clear if Jackson will win any Republican votes.
When the Senate voted to confirm her last year to fill a vacancy on a powerful DC-based appellate court, three Republican senators voted with Democrats in favor: GOP Sen. Lindsey Graham, Susan Collins of Maine and Lisa Murkowski of Alaska.
But Graham told CNN it’s “fair to say” he sees red flags with her nomination in an interview after his first round of questioning the nominee, saying her answers on defending Guantanamo Bay detainees “just doesn’t make sense to me.”
This story and headline have been updated with additional developments Wednesday.