- Sen. Jon Ossoff asked about Jackson’s ruling saying ‘presidents are not kings.’
- Sen. Thom Tillis rails against expanding the Supreme Court ahead of questioning Jackson.
- Jackson explains how she treated convicted criminals to aid in their rehabilitation.
- What is Jackson’s judicial philosophy? She addresses originalism in her answers.
WASHINGTON – Judge Ketanji Brown Jackson explained her sentencing practices and her views on expanding the Supreme Court, among other topics, in another day of questions from members of the Senate Judiciary Committee on Wednesday, as hearings continue over her historic nomination to be the first Black woman on the Supreme Court.
Senators asked the judge about a wide range of topics Tuesday, including about her judicial philosophy, her faith, her work as a former federal public defender and sentences she handed down as a District Court judge in Washington.
Wednesday’s hearing began with two senators finishing up their first round of questions, before moving into a second round – slightly shorter – with questions from the committee’s 22 members.
Democrats are planning to finish the hearings on Thursday and hope to move Jackson to a final confirmation vote by early April.
Jackson’s first day:Jackson fights back against GOP criticism over sentencing, Gitmo
Jackson adds to philosophy answer
Jackson offered additional context to her answer a day earlier about her judicial philosophy – and how she feels about the notion of originalism.
Originalism is the idea that the Constitution should be interpreted based on the meaning of the founding document’s words at the time they are written. Jackson had nodded to that theory several times Tuesday.
In response to a question from Durbin, Jackson on Wednesday said it is important to consider the original meaning but also to “analogize” to present day.
Durbin had framed his question in the context of the First Amendment’s freedom of press. How, Durbin asked as he held up a cellphone, should federal courts view the First Amendment ,given that technology has changed the way most Americans read their news today?
“When the court gets an issue that requires constitutional interpretation, it looks at the facts and circumstances of the particular case, and the text and principles of the Constitution in light of the times in which they were written, and analogizes to present day,” Jackson said.
Durbin said that when conservatives pledge themselves to originalism they “better have your mind open to the reality that this world is changing.”
– John Fritze
Jackson says she gave defendants their ‘day in court’ to support rehabilitation
In a line of questioning about Jackson’s sentencing habits, Sen. Thom Tillis, R-N.C., suggested that Jackson’s “level of empathy” toward defendants may be “beyond what some of us would be comfortable with” regarding justice administration. She argued in response that her decisions, particularly with explaining defendants’ actions to them, expands on a congressional framework that tells judges one of the purposes of punishment is rehabilitation.
“What I conveyed – or did when I was a trial judge – as I sentenced people to very lengthy periods of incarceration was, you are getting your day in court,” she said. “You are able to say what you want to say, but you have to sit here and listen to my reading into the record – the victim statements, in this case. You have to go away understanding that I am imposing consequences for your decision, your decision to engage in criminal behavior.”
She added that as a public defender, she found that many individuals were embittered by the criminal justice system, not encouraged to understand their wrongdoing.
“Nobody said to them, ‘Do you understand that there are children who will never have normal lives because you sold crack to their parece, and now they’re in a vortex of addiction? Do you understand that, Mr. Defendant?’” she said. “I was the one in my sentencing practices who explained those things in an interest of furthering Congress’ direction, that we’re supposed to be sentencing people so that they can ultimately be rehabilitated to the benefit of society as a whole.”
Tillis rebutted that “virtually half” of those individuals were reincarcerated within eight years before yielding his time.
– Ella Lee
Tillis rails against court packing
Sen. Thom Tillis, R-N.C., started his line of questioning by asking Jackson to describe the different sides of the debate over adding justices to the Supreme Court.
He then pivoted to discuss the “ecosystem” of groups supporting Jackson’s nomination, including Demand Justice, a left-leaning activist group that has called for adding at least four justices to the high court and eliminating the Senate’s 60-vote filibuster.
“We’re talking about the ultimate destruction of two institutions,” he said.
On court expansion:Supreme Court commission submits report to White House with no recommendation on ‘packing’
Jackson has avoided discussing her views on the subject and made clear in her exchanges with other GOP senators that she won’t wade into the issue of expanding the size of the nine-member Supreme Court.
Tillis did not ask her about the issue, but warned Jackson could see attempts to add more justices if she is confirmed.
– Phillip M. Bailey
A look at Jackson’s child porn sentences
Jackson has come under intense questioning at her confirmation hearing from some Republicans who accused her of being too lenient as a trial judge with sentences imposed in child pornography cases.
USA TODAY reviewed seven cases initially raised by Republicans. Among the findings: Jackson’s sentences were above the punishment recommended by the Probation Office in two of the cases and Jackson issued the same sentence recommended by that office in three cases.
Largely missing from the hearings so far has been extensive background on the cases in question. Here are summaries of the cases reviewed by USA TODAY.
– Kevin McCoy and John Fritze
Grassley spurns Democrats on information access regarding Jackson’s sentencing records
Ranking member Sen. Chuck Grassley, R-Iowa, rebuffed Democrats for purportedly withholding information on data related to probation officer recommendations.
Democrats on Tuesday used a chart on probation officer recommendations to refute a line of questioning by Sen. Josh Hawley, R-Mo., regarding Jackson’s sentencing on child sex crimes, NBC News reported. Republicans claimed that information was being intentionally withheld, though Democrats said the documents were provided by the White House that morning and Durbin claimed “everyone had access to if they wanted it.”
“No one on our side of the aisle had access to this information,” Grassley said. “In fact, before this past week, I’m not sure anyone but the probation office and the court had access to this information.”
He asked for more transparency and to add his name to letters from Sens. Mike Lee, R-Utah, and Ted Cruz, R-Texas, requesting additional information on the data.
Despite that, he also complimented the committee’s Democrats for exercising “grace and dignity” throughout Jackson’s hearing, drawing a negative comparison to now-Supreme Court Justice Brett Kavanaugh’s hearings.
– Ella Lee
Ossoff questions Jackson about ‘presidents are not kings’ decision
Democratic Sen. Jon Ossoff of Georgia asked Jackson about a 2019 decision on presidential power over House Democrats’ effort to subpoena former White House counsel Don McGahn.
“You, in an opinion that has been widely cited, made the observation that presidents are not kings. What does that mean?” asked Ossoff.
“The framers decided, after experiencing monarchy, tyranny and the like, that they were going to create a government that would split the powers of a monarch in several different ways,” responded Jackson.
“The separation of powers is crucial to liberty, it is what our country is founded on, and it’s important as consistent with my judicial methodology for each branch to operate within their own sphere. That means for me that judges can’t make law, judges shouldn’t be policymakers,” she added.
Ossoff kicked off Wednesday’s questioning. Because Tuesday’s hearing ran long, he and GOP Sen. Thom Tillis of North Carolina will each conduct their first round of questioning before the committee members each have an opportunity to ask a second round of questions. Ossoff’s Georgia colleague, Democratic Sen. Raphael Warnock, was in the room watching the proceedings during Ossoff’s questioning, and Ossoff acknowledged him at the top of his remarks.
– Dylan Wells
Cornyn accuses Durbin of editorializing hearing
Sen. John Cornyn, R-Texas, interrupted an opening statement from ranking member Sen. Chuck Grassley, R-Iowa, to complain of Durbin’s apparent fact-check on his line of questioning Tuesday about whether Jackson ever referred to former President George Bush and Defense Secretary Donald Rumsfeld as “war criminals” in legal filings.
Cornyn said after Republicans questioned Jackson, Durbin chose “to editorialize and contradict the points being made by the side of the aisle.”
Durbin later offered new research showing she never referred to the pair as “war criminals,” pointing out that she was advocating on behalf of clients who raised claims of torture.
“I don’t think it’s appropriate for the chairman, after every time somebody on this side of the aisle ask questions of the judge, you come back and you denigrate, and you attack and you criticize the line of questioning,” Cornyn said, adding Jackson is doing a “pretty good job” defending herself.
Durbin defended his actions by noting he was observing “chairman’s time,” a tradition in the Judiciary Committee exercised by former chairmen, including Sen. Lindsey Graham, R-S.C.
“In the minority, we waited through chairman’s time when we had Republican chairs,” Durbin said. “There will not be a separate set of rules for Democrats in control of this committee.”
– Courtney Subramanian
Durbin: Some Republicans playing politics
Senate Judiciary Chairman Dick Durbin, D-Ill., kicked off Jackson’s hearing Wednesday by playing some defense over charges that the judge was too lenient on sentences in child pornography cases.
Durbin said the 13-hour hearing turned into a “testing ground for conspiracy theories and culture war theories.”
“It is difficult if not impossible to put ourselves in your place,” Durbin said. “You’re in the mainstream of sentencing when it comes to child pornography cases.”
Durbin chalked the exchanges with some senators up to politics, asserting that “yesterday was an opportunity to showcase talking points for the November election.”
– John Fritze
Those 7 child porn cases:A look at the child pornography cases at issue in Ketanji Brown Jackson’s Senate hearings
Romney: ‘No there, there.’
At least one key Republican senator isn’t buying the criticism of Judge Ketanji Brown Jackson’s record on sentencing in child pornography cases: Sen. Mitt Romney of Utah.
“It struck me that it was off course, meaning the attacks were off course that came from some,” Romney told The Washington Post on Tuesday. “And there is no there, there.”
That’s significant because Romney is one of a handful of GOP senators who could potentially vote for Jackson.
– John Fritze
Sentencing likely to reappear
Particularly toward the end of Tuesday’s hearing, Republicans peppered Jackson with questions about sentences she handed down as a federal trial court judge. Those inquiries were focused on seven cases involving what’s known as “non-production” child pornography offenses, in other words possessing or distributing the material.
Sen. Josh Hawley, R-Mo., has led the charge on the issue, despite pushback from Democrats, the White House and some independent experts who note that the U.S. Sentencing Commission itself reports that the majority of the child pornography offenses at issue result in sentences that are below the federal guidelines – which are advisory.
Working mom:Jackson’s comments on motherhood, her husband’s tears and other moments
Speaking to reporters Tuesday, Hawley said he hadn’t yet decided what questions he would ask during his second round. Given his focus on the issue so far, it seemed certain that he would raise it again Wednesday, perhaps focusing on transcripts from court proceedings Jackson held in the cases.
“Those were tough questions,” Hawley acknowledged. “I asked her and I thought she handled them well.”
But Hawley indicated he wasn’t convinced by Jackson’s answers.
“Her argument to me was, ‘Hey, this is tough, but I’m doing the best I can.’ And my argument to her was, ‘I don’t agree with your judgment,'” Hawley said. “That’s just a professional disagreement.”
But Senate Judiciary Committee Dick Durbin, D-Ill., said the issues Hawley was raising were at least partly the fault of Congress for not stepping in to update the guidelines.
“This is an extraordinary challenge to every judge because Congress won’t touch this hot-button issue,” Durbin said late Tuesday. “Judges are stuck.”
– John Fritze
Plan for Day 3
After a marathon 13-hour session Tuesday, the Senate Judiciary Committee was angling for a shorter – slightly shorter – round of questions in the third day of hearings.
To start with, because Tuesday’s hearing went so long, two members of the committee couldn’t squeeze in their first round of questions: Sens. Thom Tillis, R-N.C., and Jon Ossoff, D-Ga. They’ll start off the hearings Wednesday and will get 30 minutes each.
Then the rest of the committee will get a second round of questions, at 20 minutes each.
“I’m going to land this plane,” Sen. John Kennedy, R-La., quipped as he ended his questioning late Tuesday. “We’ll take off again tomorrow.”
The senators will also meet in a closed session to discuss Jackson’s FBI background investigation, a standard procedure for every Supreme Court nominee.
The hearings are supposed to conclude Thursday with testimony from outside groups, such as the American Bar Association.
– John Fritze
How many days will confirmation hearings last?
The Judiciary Committee’s hearings last four days total, with two days of direct questioning of Jackson.
On the final day – Thursday – the committee will hear testimony from the American Bar Association and other outside witnesses. They will have five minutes each for statements, and question rounds will also be five minutes.