Ketanji Brown Jackson Weathers a Marathon Day Two

Judge Ketanji Brown Jackson took her solitary seat in front of the semi-circle dais of lawmakers for the second day of her confirmation hearing Tuesday and faced more than 12 hours in the hot seat as lawmakers peppered her with questions.

If confirmed, Jackson, currently a judge on the Court of Appeals for the D.C. Circuit, will replace retiring Justice Stephen Breyer on the U.S. Supreme Court. 

Though the Senate is evenly divided, Vice President Kamala Harris’ tie-breaking ability gives Democrats the ability to confirm her on a partisan basis. A bipartisan vote would be a win for the Biden administration, though Republicans have been fairly mum about how they will come down on the final vote.

In contrast to a staid first day of opening statements, the second day unfolded in more dynamic fashion. Republicans tried to nail down Jackson on a variety of hot button issues and, like past nominees, she tried to sidestep their more specific queries. One example: When asked whether the number of seats on the Supreme Court should be expanded, Jackson noted that Justice Amy Coney Barrett had refused to weigh in on the question. “My north star is the consideration of the proper role of a judge in our constitutional scheme. Judges should not be speaking to political issues,” Jackson said.

The hours wore on, featuring plenty of political theatrics as lawmakers made the most of their televised exchanges. Due to breaks for Senate floor votes and meals, day two of the hearing lasted until just past 10 p.m.

On defense, Democrats used their time to try to preempt and respond to Republican criticisms. As an opener, Senate Judiciary Chairman Dick Durbin used his 30 minutes to give Jackson a chance to respond to GOP accusations from Monday that her sentences in some child porn cases were too lenient. The attempt did little to keep multiple Republicans from raising the issue throughout the day. 

Other Democrats focused on highlighting the historic moment, noting that Jackson would be the first black woman confirmed to the high court. They also lobbed Jackson plenty of softball questions, asking about her background and family. 

(One exception was Rhode Island Democratic Sen. Sheldon Whitehouse, who used his time to air a lengthy broadside against dark money groups at large and conservative organizations that supported past GOP nominees to the Supreme Court and plugged his own legislation to combat the issue.)

On offense, Republicans’ approaches varied: Some focused on cultural war concerns, such as asking about the nominee’s views on critical race theory—something she said “doesn’t come up in my work as a judge”—and abortion—she said Roe vs. Wade and Casey v. Planned Parenthood are settled law and ducked questions on when life begins or when equal rights under the law attach to a person. 

Others raised questions about Jackson’s time as a public defender, which included representing Guantanamo Bay detainees (her response was that lawyers don’t pick who they defend.) The most sensitive topic involved Jackson’s sentencing involving cases of child pornography. Wonkier lines of questioning sought to pin down Jackson’s judicial philosophy.

At times, civility wore thin.

Republican Sens. Josh Hawley of Missouri and Ted Cruz of Texas both pressed Jackson at length about her record of sentencing in child pornography cases during her time as a district court judge.

Jackson described such crimes as “egregious” and said that her sentencing as a judge was guided by Congress’ requirement to impose a punishment “sufficient but not greater than necessary.”

Hawley homed in on a particular case in which Jackson sentenced an 18-year-old male in possession of child pornography to three months in federal prison.

Why, he demanded, did Jackson only sentence him to three months?

“It is heinous. It is egregious,” she said. “It’s not just about how much time a person spends in prison. It’s about understanding the harm of this behavior.”

Jackson defended her approach as in the mainstream, and said that if he looked at the “greater body” of her rulings, as well as those by other judges “you would see a very similar exercise of attempting to do what it is that judges do—attempting to take into account all of the relevant factors and do justice individually in each case.”

Hawley then responded: “I am questioning your discretion and your judgment.”

Congress sets the federal sentencing guidelines that advise judges on maximum and minimum penalties. The Washington Post noted that in the case of United States v. Hawkins, the case Hawley referenced, federal prosecutors requested a 24-month sentence, below the guidelines. (Defense attorneys in the case recommended a one-day sentence, while the U.S. Probation and Pretrial Services System—which also issues sentencing recommendations—recommended 18 months.)

Another tense exchange came when Sen. Tom Cotton, a Republican from Arkansas, questioned Jackson on crime rates and policing. He asked whether there should be more or fewer police officers and whether sentences should be lighter or tougher for murder, rape, drug trafficking, and other crimes.

“Senator, these are policy questions. It’s not that they’re difficult questions—it’s that they’re not questions for me,” she said, referring to the judicial branch. “I am not the Congress. I am not making policy around sentencing.”

Some of the more intriguing exchanges came as lawmakers tried to understand Jackson’s judicial philosophy.

Throughout the day, she repeatedly declined to give her own approach a label, other than saying she has a “methodology” of seeking to approach cases from a neutral framework and operating with judicial restraint in mind. But at times, her answers sounded like they came from conservative commentators. 

To GOP Sen. Chuck Grassley Jackson insisted, “I do not believe that there is a living Constitution in the sense that it’s changing and it’s infused with my own policy perspective or the policy perspective of the day. Instead, the Supreme Court has made clear that when you’re interpreting the Constitution you’re looking at the text at the time of the founding.”

To Nebraska Sen. Ben Sasse, another Republican, Jackson said she seeks to start from a “neutral posture” in her cases. When Sasse asked her to elaborate, Jackson said she believes originalism—the judicial philosophy that holds that judges should look to the framers’ intention in crafting the Constitution—has become the main lens through which the Supreme Court approaches its interpretation of the law. She did not say whether she personally believes that’s the correct mode of interpretation but said the court has “clearly taken the historical perspective, the originalist perspective.” 

Sasse asked Jackson whether her opinions aligned more with Justice Antonin Scalia, who championed a conservative approach, or with Justice Breyer, for whom she clerked and who says the Constitution should be interpreted in a lens that is “workable” for the present day.

Jackson noted that the “living Constitution” theory is criticized for the perception that judges are guided more by their policy preferences instead of “hewing to the text of the Constitution.” She also added that it’s clear that “Justice Scalia’s view is the prevailing interpretative frame.” But she never signaled her own approval or disapproval of the framework.

Several conservative commentators noted that while they place no faith in Jackson to approach cases in the same manner as a conservative GOP nominee, her answers illuminated the strength of the conservative legal movement. National Review senior writer Dan McLaughlin called Jackson’s answers “striking” and said the hearing overall had been a “thoroughgoing rout for progressive theories of law and politics.” Ethics and Public Policy senior fellow Ed Whelan tweeted that her answers were “validating conserative judicial principles.”

Jackson, now 51, is a graduate of Harvard Law School who has clerked for three federal judges. She worked for two years as a public defender and later practiced private law.

Jackson has been confirmed on a bipartisan basis by the Senate thrice before: to serve as vice-chair on the U.S. Sentencing Commission, a congressionally created body that examined sentencing disparities in federal courts; to serve as a federal district judge; and to serve on the Court of Appeals for the D.C. Circuit. Three Republicans—Sens. Susan Collins of Maine, Lisa Murkowski of Alaska, and Lindsey Graham of South Carolina—voted to confirm her last year.

It’s possible she’ll receive votes from some Republicans again, but Graham seems unlikely to be one of them. He began by asking Jackson about her faith background, to which Jackson answered that she is a nondenominational Protestant Christian. Graham then asked if she would judge a Catholic fairly. Yes, Jackson said, then added, “As you know, there’s no religious test in the Constitution.”

“Well, how would you feel if a senator up here said of your faith, ‘The dogma lives loudly within you’ and that’s of concern?” he asked. The statement was a reference to 2017, when California Democratic Sen. Dianne Feinstein said the same thing to Amy Coney Barrett when she appeared for confirmation to the 7th Circuit Court of Appeals.

Without giving Jackson time to answer, Graham went on to call past treatment of GOP-nominees “offensive” and criticized the White House’s decision not to tap federal district court Judge J. Michelle Childs, also from South Carolina, for the role, predicting that she would have gotten more Republican support.

The first round of questioning will bleed into Wednesday. Lawmakers will then begin a second round of questions, each getting 20 more minutes to probe Jackson. The hearing is expected to wrap up Thursday. Jackson may not appear at all that day, as character witnesses weigh in and lawmakers hear from the American Bar Association, which has given her its highest rating of “well qualified.”

Jackson’s nomination is expected to advance out of committee, and a final vote may come as early as April’s second week.

A few blocks away from the Capitol, deputy White House press secretary Chris Meagher said President Joe Biden had watched some of the hearing and praised Jackson’s approach. Biden “appreciated Judge Jackson’s commitment to stay in the lane of judges prescribed by the Constitution and her highlighting the importance of precedent,” Meagher said. “He was also struck by how she swiftly dismantled conspiracy theories put forward in bad faith.”