Live update: Senators question Ketanji Brown Jackson during second day of hearings

Judge Ketanji Brown Jackson spent more than 13 hours Tuesday responding to often pointed questions about her judicial philosophy, past legal work and even her religion, as the second day of her Supreme Court confirmation hearing concluded.

The session became more combative as the day wore on, particularly after Republican senators aggressively questioned her about sentences the judge had issued to child sex offenders. But the day’s hearing was still relatively tame compared to other recent Supreme Court confirmation hearings and seemed to do little to derail Jackson’s chances of confirmation.

Republican lawmakers by and large stuck to criticisms they had telegraphed for days and weeks ahead of the confirmation process. Democrats, meanwhile, used much of their time defending the nominee’s record.

Jackson, for her part, gave expected answers on issues ranging from the Second Amendment to abortion rights, all the while defending her independence as a judge and reiterating her deep love of country.

For the first time, Jackson’s testimony gets emotional

After a series of spats with Republican senators on sentences related to child pornography and drug charges, Sen. Cory Booker released a sigh and gave Jackson space to talk about her family.

And for the first time today, Jackson’s voice caught a little.

Jackson showed a little emotion when talking about how her family, particularly her parents and grandparents, who she said did not have the same academic and job opportunities that she had but sacrificed so much for hers.

Again, her voice started catching when talking about balancing her career with raising her two daughters. She echoed earlier statements in which she said that “she didn’t always get the balance right.”

“You have to make a choice,” she told Booker.

Booker, a Democrat from New Jersey, started his questions by saying that arguments from several Republican senators “did not carry water,” including questions about her views on critical race theory and her rulings in child pornography cases.

Booker, too, sounded a little emotional when he told Jackson that not only her living relatives are proud, “but so are your ancestors.”

Sen. Dick Durbin, who is presiding over the hearings, noted Jackson’s emotion as well at the end of his questions and said, “there is only one Cory Booker” about senators on the committee.

After, Booker took a photo with Jackson’s family.

-- GILLIAN BRASSIL

Hearing takes combative turn

Tuesday’s hearing took on a more acerbic tone as the session wore on, as Republican senators adopted a more aggressive approach toward Jackson and started criticizing the hearing’s format.

The more negative tone appeared to start with questioning from GOP Sens. Ted Cruz of Texas and Josh Hawley of Missouri, who criticized Jackson on subjects like Critical Race Theory and sentences she issued for child sex offenders. Those questions gave way to some infighting on the committee, when Republicans complained that they were not given documents outlining the probation officers’ recommendations in some of the judge’s cases.

When the back and forth among senators subsided, Republican Sen. Tom Cotton of Arkansas began asking Jackson a series of questions about whether she thought the country should do more to lock up criminals and increase their punishment.

The questions elicited what was one of the tenser exchanges of the day, with Cotton arguing they shouldn’t be difficult to answer while the judge rebutted that it wasn’t her role, as a judge, to set policy in that way.

“It’s not that they’re difficult questions,” Jackson said. “It’s that they’re not questions for me. I’m not the Congress. I am not making policy about sentencing.

Hawley, Cruz, and Cotton are all widely believed to have presidential ambitions, and confirmation hearings have traditionally offered White House aspirants a chance to raise their profile and impress their respective political bases. The more combative atmosphere might also reflect a hearing that had started at 9 a.m. and was now stretching toward 8 p.m.

“Approaching 11 hours now of a long day,” said Booker, who spoke after Cotton.

-- ALEX ROARTY

Collins hasn’t watched Tuesday’s hearing

A key swing vote senator, Sen. Susan Collins, said Tuesday evening that she had seen little of the hearing because she’s been focused on the Russian invasion of Ukraine.

“I truly have not seen the hearing today. I’ve seen little snippets when I’ve been in the office, but I’ve been working on Ukraine,” said Collins, R-Maine, who said earlier this month she would wait until after the hearings to make her decision about Jackson.

Collins was one of three Republicans who supported Jackson’s confirmation to the D.C. Circuit last year. Collins said she would watch excerpts of the hearing later in the evening but said she was unaware of Sen. Josh Hawley’s and Sen. Ted Cruz’s questions to the judge about sex offense sentencing.

-- BRYAN LOWRY

Hawley, Jackson spar on sentences for child sex offenders

Hawley, a Republican senator from Missouri, again argued that Jackson was soft on defendants in cases related to child pornography.

Jackson pushed back, saying that Congress has failed to offer enough guidance to the courts on the issue.

Hawley argued that Jackson, Biden’s pick for the Supreme Court, was lenient on defendants in seven child pornography cases she decided throughout her career. The Republican senator cited one in particular in which Jackson sentenced an 18 year old to three months in federal prison.

Jackson was sympathetic toward the defendant, Hawley argued, as the prosecutor had asked for two years.

Jackson, echoing past rebuttals, said that all cases in this sphere are heinous but that judges still have to issue a just sentence.

“All of the offenses are horrible. All of the offenses are egregious,” she said of these types of cases.

Jackson noted that, in 2005, the Supreme Court ruled that judges could not enhance sentences using facts not reviewed by juries.

Now, Jackson said, judges are charged with deciding sentences on a case-by-case basis. Judges must determine sentences that are proportionate with the statutes set by Congress that are “sufficient but not greater than necessary.”

-- GILLIAN BRASSIL

Sen. Cruz: Do you agree ... that babies are racist?

Cruz started his line of questioning warmly, mentioning that he and President Joe Biden’s nominee for the Supreme Court were a year apart at Harvard Law School.

But the friendliness ended when the Texas Republican asked Jackson if she thought babies were racist and insinuated she advocated for sexual predators during her career.

Cruz, in a line of questioning about her stances on critical race theory, pulled up a quote from a speech that Jackson once gave at the University of Chicago on a bright-red posterboard: “[S]entencing is just plain interesting ... because it melds together myriad types of law — criminal law, of course ... constitutional law, critical race theory ....”

Critical race theory explores the connection between race and law and has come under fire by Republicans for its application in public education.

Cruz contended that Jackson understood and applied critical race theory in showing blown up photographs from “Antiracist Baby” by Ibram X. Kendi. The book is offered as reading at Georgetown Day School, where Jackson is a board member.

Cruz asked if, based on the book, she thought if “babies are racist?”

Jackson paused before answering, something that she did not do often Tuesday.

She noted that the board does not make decisions on assigned reading and that the school was founded on the principles of being open to everyone at a time when segregated schools were the norm. Founded in 1945, it was Washington’s first integrated school.

In response to her understanding and views on critical race theory, Jackson said that she thought it was a theory taught in law schools and that it did not apply to her work.

“It doesn’t come up in my work as a judge. It’s never something I’ve studied or relied on, and it wouldn’t be something that I would rely on if I were on the Supreme Court,” she said.

-- GILLIAN BRASSIL

Kavanaugh, Barrett invoked frequently

Time and time again on Tuesday, Jackson has given answers almost identical to ones given by Trump administration nominees Amy Coney Barrett and Brett Kavanaugh during their confirmation hearings, as Biden’s pick attempts to convince senators that she’s a fair and impartial judge even on sensitive subjects.

When asked by Democratic Sen. Amy Klobuchar of Minnesota how she viewed voting, Jackson responded that she viewed it as a “fundamental right” of citizens.

Klobuchar noted quickly that it was the same answer Barrett gave during her confirmation hearing in 2020. And it wasn’t the first time an answer of hers was linked to the conservative justice, either: At the start of the day, when asked by Senate Judiciary Committee Chair Durbin what her views were on expanding the size of the Supreme Court, Jackson referenced Barrett’s answer that adding justices was a matter for the legislature to decide.

Later, when asked about Roe v. Wade, the judge said she agreed with Barrett and Kavanaugh who both said that the right to an abortion had already been settled by the Supreme Court.

Invoking so often the names of the two most recent conservative justices nominated to the Supreme Court is a way for Jackson to gain cover for her answers, as she tries to win confirmation. Critics of the confirmation process, however, would also say it shows how little light they shed on how the justices would actually act on the nation’s highest court: Jackson is widely expected to deliver much different rulings on voting and abortion rights than Kavanaugh and Barrett.

-- ALEX ROARTY

BIDEN OFFERS SUPPORT

President Joe Biden is preparing for a trip to Europe to coordinate with U.S. allies on the crisis in Ukraine — but he’s taken time to watch parts of Jackson’s testimony before the Senate Judiciary Committee.

White House deputy press secretary Chris Meagher told reporters that that Biden is pleased with the way she is presenting herself and her dedication to following the facts, the law and the U.S. Constitution.

“He was also moved by the grace and dignity she has shown the deference to senators and the level of detail she is offering, reinforcing the value of her experience, her intellect and the strength of her character.”

Meagher said that as a former chairman of the committee, Biden also appreciated her highlighting the importance of legal precedent.

“He was also struck by how she swiftly dismantled conspiracy theories put forward in bad faith. They have been debunked by numerous experts and the record itself,” Meagher said.

-- FRANCESCA CHAMBERS

Sen. Cornyn presses on gay marriage decision

Sen. John Cornyn questioned “substantive due process” by invoking the Supreme Court case that required states to license and recognize same-sex marriage.

Substantive due process denotes that courts may protect certain fundamental rights from government interference. Cornyn questioned whether it allowed judges to write policy under the guise of the law.

The Texas Republican said that he was not questioning the validity of same-sex marriage, rather that voters and states should have the right to vote and decide.

Jackson deflected on her personal views, as she has done consistently throughout questioning on Tuesday. She said that the Supreme Court decided that same-sex marriage was protected under the Fourteenth Amendment, which guaranteed all citizens “equal protection of the laws,” in the outcome of Obergefell v. Hodges.

Decided in 2015, the decision requires states to recognize same-sex marriage.

When Cornyn contended that the Court’s decision in 2015 might have conflicted with beliefs of some religious people, Jackson responded quickly: “That is the nature of a right.”

Cornyn also contended that marriage, which is not a right outlined under the Constitution, is partly a religious institution and that many religions suggest that it should be between a man and a woman. He called back on the dissenting opinion written by Supreme Court Justice Samuel Alito, who wrote that people will risk “being labeled as bigots and treated as such by governments, employers, and schools” for their personal beliefs against same-sex marriage.

-- GILLIAN BRASSIL

AFFIRMS RIGHT TO ABORTION

Asked whether she thought the Supreme Court’s landmark Roe v. Wade was the law of the land, Jackson said she agreed with conservative justices Barrett and Kavanaugh that it was. Both conservative justices said so during their own confirmation hearings.

“Roe and Casey are the settled law of the Supreme Court concerning the right to terminate a woman’s pregnancy,” Jackson said. “They have established a framework that the court has reaffirmed.”

Democrats fear that the Supreme Court will at least partially strike down Roe v. Wade later this year, reducing federal protections for the right to an abortion.

SEN. GRAHAM: HOW RELIGIOUS ARE YOU?

In what was the most contentious moment of the hearing so far, Sen. Lindsey Graham of South Carolina bluntly asked Jackson to identify her religion and whether she could fairly judge a Catholic.

After Jackson said she was a Protestant, non-denominational and had a record of judging everyone friendly, Graham pressed further, asking her to rate her religiosity on a scale of 1 to 10.

The judge demurred.

“Well, Senator, I am reluctant to talk about my faith in this way just because I want to be mindful of the need for the public to have confidence in my ability to separate out my personal views,” Jackson said.

Graham made clear that his line of questioning was less about Jackson than what he considered past mistreatment of conservative judicial nominees, referencing Justice Barrett and Federal Judge Janice Rogers Brown, the latter of whom was confirmed to the U.S. Court of Appeals in 2005 but after two years of opposition of some Democrats and civil-rights groups.

It’s hypocritical how Democrats are allowed to hold their faith without judgment, the senator said, but conservatives are not.

“If you express your faith as a conservative, all of a sudden you’re an f-ing nut,” Graham said. “And we’re tired of it.”

Republicans have used a substantial amount of time during Jackson’s confirmation hearings not to question the judge herself but to settle old grievances about past confirmation processes, including not just Barrett but current Supreme Court Justice Brett Kavanaugh. In doing so, like Graham, they have promised that Jackson will receive more fair treatment.

-- ALEX ROARTY

TOUTS ‘GREATNESS OF AMERICA’

Sen. Chuck Grassley of Iowa, the ranking member of the Judiciary Committee, opened his time with a little humor, saying that his wife told him she liked Jackson’s opening statement Monday but made no mention of his own remarks.

Then the real questions began.

Grassley asked the judge if she thought the First Amendment applied equally to liberal and conservative protests (she said it does), if citizens had a right to keep and bear arms (Jackson said the Supreme Court had established it as so), and whether Supreme Court hearings should be televised (the judge said she would need to consult with other justices before making that determination.)

But the answer that is likeliest to draw attention is Jackson’s response to a Grassley question about whether she still believes in Martin Luther King’s vision for a society where members are judged by the content of their character rather than the color of their skin.

The judge noted that her own parents, while growing up in Miami, had to attend racially segregated schools.

“My reality, when I was born in 1970, and went to school in Miami, Florida, was completely different. I went to a diverse public school, junior high school, high school, elementary school,” Jackson said. “And the fact that we had come that far was to me a testament to the the hope and the promise of this country, the greatness of America, that in one generation — one generation — we could go from racially segregated schools in Florida to have me sitting here as the first Floridian ever to be nominated to the Supreme Court of the United States.”

-- ALEX ROARTY

JACKSON EXPLAINS GUANTANAMO WORK

Durbin brought up criticism that Jackson has received for representing Guantánamo Bay detainees. Durbin noted that on the first day of the hearings, Republican Sen. Lindsey Graham of South Carolina, who served as a military lawyer, said the work Jackson did as a federal public defender around this issue does not bother him.

Jackson told Durbin that after the Sept. 11, 2001 terrorist attacks, there were lawyers “who recognized that our nation’s values were under attack” and “that we couldn’t let the terrorists win by changing who we were fundamentally.”

“The people who were being accused by our government of having engaged in actions related to this under our constitutional scheme were entitled to representation, were entitled to be treated fairly. That’s what makes our system the best in the world. That’s what makes us exemplary,” Jackson said.

Jackson also said that federal public defenders do not get to pick their clients and have to represent whoever comes in, and so as an appellate defender she represented some of those detainees.

She said that that time her petitions were “virtually identical” because they had very little information, and that she was making “legal arguments” about the circumstances of their detentions at the U.S. Navy base in Guantánamo Bay, Cuba.

Graham was not in the room during Jackson’s initial remarks on Tuesday. He did say in his opening remarks on Monday that Jackson’s defense of Guantánamo Bay detainees “is not a problem with me” because “everybody deserves a lawyer, you’re doing the country a great service when you defend the most unpopular people.” But he added that he wanted to know about the Guantánamo Bay work that Jackson did when she was in private practice.

Sen. Patrick Leahy, D-Vermont, later asked Jackson to expound on her Guantánamo Bay work in private practice.

Jackson said that law firms that took on pro bono clients were receiving requests, typically through nonprofit organizations, to represent Guantánamo Bay detainees and one of the individuals she had represented as a public defender ended up being assigned to the law firm she joined.

She said that when she arrived at the firm in 2007 — Morrison & Foerster — the partners saw that, according to the docket, she had previously represented the individual, and they asked her to continue doing so.

“That was the only person that I represented in the context of my private firm,” Jackson testified.

Jackson said she also wrote habeas corpus briefs for judges and nonprofits, including the Cato Institute, Rutherford Institute and the Constitution Project, that were interested in making arguments to the Supreme Court around questions that arose around executive authority and the legal rights of detained individuals.

Graham asked Jackson about the brief that former federal judges signed, and Jackson told him that a partner at her firm, who was a former federal judge, wanted to file an amicus brief to the Supreme Court on detentions. Jackson said it was not her idea and that she only helped with the effort.

He proceeded to aggressively press Jackson to say if she believes that indefinite detention of an enemy combatant is lawful. Jackson declined to spell out her personal views on the matter.

At the end of Graham’s allotted time, Durbin interjected to say that 39 detainees remain at Guantánamo Bay, and the annual budget for the prison is $500 million a year. Durbin said that it would be dramatically less expensive to incarcerate detainees at a super-max prison in Colorado and argued that the recidivism rate is lower than Graham made it out to be.

Graham said that the overall percentage of detainees who return to the battlefield is irrelevant. “I’m suggesting the system has failed miserably, and advocates to change the system, like she was advocating, would destroy our ability to protect this country,” Graham said. “We’re at war, we’re not fighting a crime.”

“I hope they all die in jail, if they’re going to go back to kill Americans. It won’t bother me one bit if 39 of them die in prison, that’s a better outcome than letting them go,” he erupted. “And if it costs $500 million to keep them in jail, keep them in jail, because they’re going to go back to the fight.

“Look at the frickin’ Afghan government. It’s made up of former detainees of Gitmo. This whole thing by the left about this war ain’t working,” Graham concluded.

-- FRANCESCA CHAMBERS

Jackson responds to Durbin about child sex offenders

Durbin, chairman of the Judiciary Committee, welcomed Jackson to what he said is a day known as a “trial by ordeal.”

Durbin wasted no time giving Jackson a chance to respond to two of the GOP’s most prominent lines of criticism, asking her whether she wanted to expand the size of the Supreme Court and if she was too lenient in judgment of child sex offenders.

On the size of the nation’s highest court, Jackson said it wasn’t her place to comment on what is a legislative issue, referencing a similar answer that conservative nominee Barrett gave during her confirmation hearing in 2020.

“In my view, judges should not be speaking into political issues, and certainly not a nominee for a position on the Supreme Court,” Jackson said.

On whether she was too lenient in her sentences to child sex offenders, Jackson offered an emotional rebuttal.

“As a mother and a judge who has had to deal with these cases. I was thinking that nothing could be further from the truth,” she said.

Jackson said that when she handed out sentences, she always attempted to incorporate the viewpoint of the victims of the crime, explaining to the perpetrators the harm they’ve done.

“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,” Jackson said. “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.’ ”

Jackson’s comments about her sentencing of child sex offenders are the most extensive she’s offered yet in response to the criticism, which started to gain traction among some Republican lawmakers last week.

-- ALEX ROARTY

This story was originally published March 22, 2022 at 5:58 AM with the headline "Live update: Senators question Ketanji Brown Jackson during second day of hearings."