Judge Ketanji Brown Jackson, President Joe Biden's pick to replace the retiring Justice Stephen Breyer on the Supreme Court, returned to the U.S. Capitol on Wednesday for the second day of questioning by the Senate Judiciary Committee.
The most contentious line of questioning came from Republican Sen. Lindsey Graham. He was critical of Jackson's sentencing in child porn cases.
"If you're on the internet trolling for images of children and sexual exploitation. So—so you don’t think that’s a bad thing, I think that’s a horrible thing," Graham said as he continually cut off Jackson as she attempted to explain how she sentences people.
Graham previously supported Jackson on the court of appeals, but said the Supreme Court is a "different game."
Earlier in the day, Jackson talked about what she believes are the most important defenses to protect against abuse from the executive branch of government.
"The separation of powers is crucial to liberty," she said. "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. That's a part of our constitutional design, and it prevents our government from being too powerful and encroaching on individual liberty."
Wednesday's questioning follows more than 13 hours of grilling on Tuesday. The committee hammered Jackson on her background, her past judicial record and her views on topics upon which the court will undoubtedly rule in the terms ahead.
Jackson remained composed during the lengthy hearings, calmly answering questions levied by Senators.
The confirmation hearing was set to wrap up on Thursday when lawmakers are scheduled to speak with character witnesses. A total of 13 people — including Jackson's friends, colleagues and legal experts — will speak during Thursday's session. They are:
- Claire Williams, D. Jean Veta and Joseph M. Drayton of the American Bar Association’s Standing Committee on the Federal Judiciary
- Rep. Joyce Beatty, D-Ohio
- Dean Risa Goluboff of the University of Virginia
- Wade Henderson, the president & CEO of the Leadership Conference on Civil and Human Rights
- Richard B. Rosenthal, an appellate lawyer and friend of Ketanji Brown Jackson
- Captain Frederick Thomas, the national president of the National Organization of Black Law Enforcement Executives (NOBLE)
- Steve Marshall, Alabama attorney general
- Jennifer Mascott, a law professor at George Mason University
- Eleanor McCullen
- Keisha Russell of First Liberty
- Alessandra Serano of Operation Underground Railroad
Jackson will not be present for Thursday's session.
Jackson's potential appointment to the Supreme Court likely won't influence its ideological makeup. In replacing Breyer, Jackson would join the court's liberal contingent, which is currently outnumbered 3-6 by conservative-leaning justices.
Democrats only hold power in the Senate by way of Vice President Kamala Harris' tiebreak vote. That means all 50 Democratic senators will need to vote for Jackson's confirmation in the event no Republicans pledge their support.
See highlights from Tuesday and Wednesday's sessions below.
Packing the court
Jackson on Tuesday repeatedly chose not to provide her views on "court packing," saying that she would avoid questions about political policy.
"In my view, judges should not be speaking into political issues," Jackson said in response to a question by Committee Chairman Dick Durbin.
When asked again for her views on court-packing by Ranking Member Chuck Grassley, Jackson said she hoped to "stay in her lane" as a judge.
"It is a policy question for Congress. I am particularly mindful of not speaking to policy questions," Jackson said.
Because the number of Supreme Court justices is not spelled out in the Constitution, some Democrats in recent years have floated adding more justices to the court as a way of evening out the balance of power on the court.
Those Democrats say they would be right to do so after a Republican-controlled Senate refused to hold a hearing for President Barack Obama's nominee ahead of the 2016 election but quickly seated President Donald Trump's nominee in 2020. However, such a move could be destabilizing to the court and would break with more than 150 years of precedent.
Under questioning from Sen. Dianne Feinstein, D-California, Jackson was asked whether she thinks landmark cases like Roe v. Wade and Planned Parenthood v. Casey were "settled law." In her questioning, Feinstein noted that she asked the two most recently confirmed Supreme Court Justice, Brett Kavanaugh and Amy Coney Barrett, the same question.
"I do agree with both Justice Kavanaugh and Justice Barrett on this issue. Roe and Casey are the settled law of the Supreme Court concerning the right to terminate a woman's pregnancy," Jackson said.
Roe v. Wade established a woman's right to seek an abortion, and Planned Parenthood v. Casey said that legal restrictions on abortion should not create an "undue burden" for women seeking the procedure.
While Jackson's answer was in line with Barrett's and Kavanaugh's, abortion law in the U.S. may look radically different in a matter of weeks. The Supreme Court has already signaled that it will allow states to drastically roll back a woman's access to abortion when it rules on a landmark case out of Mississippi later this year.
Tennessee Sen. Marsha Blackburn said, “I want to go to you on something you said when you were in private practice. You made your views on pro-life and the pro-life movement very clear. And in fact, you attacked pro-life women. And this was in a brief that you wrote. You described them, and I’m quoting, ‘Hostile, noisy crowd of in-your-face protesters.' ... How do you justify that incendiary rhetoric against pro-life women? ... Let me ask you this. When you go to church, and knowing there are pro-life women there, do you look at them, thinking of them in that way, that they’re noisy, hostile, in-your-face?”
Republican senators framed Supreme Court nominee Ketanji Brown Jackson as aggressive to anti-abortion views, appearing to spin her record from a legal brief she co-signed years ago as proof she would rule broadly against abortion opponents.
North Carolina Sen. Thom Tillis said, “I’m not necessarily saying you put those words in the brief, but they were in there, and they were ‘hostile, noisy crowd.'"
The opening lines of the statement in a 2001 brief says, “Few American citizens who seek to exercise constitutionally protected rights must run a gauntlet through a hostile, noisy crowd of ‘in-your-face’ protesters. Still fewer citizens, when seeking medical or surgical care — particularly care involving deeply private matters — must confront a crowd swarming around them, shouting in their faces, blocking their way, and thrusting disturbing photographs and objects at them.”
The brief goes on to say, “Yet on any given day, patients of reproductive health clinics may face all of these. A woman may be on her way to take an HIV test, to undergo day surgery, to receive a mammogram, or to receive counseling about an intimate physical matter. But regardless of her condition or her needs, when a woman’s intention to enter one of these clinics becomes manifest, she becomes an occasion for protest. Demonstrators may swarm around her or her vehicle. Simply to get in the door, she may have to endure physical and emotional intimidation, heightened stress resulting in increased physical pain for surgery patients, unwanted exposure, and violations of personal space.”
On Tuesday and Wednesday, Jackson said that she worked on the case after joining a private law firm representing a group advocating for a buffer zone.
Jackson said the Massachusetts law was not directed at abortion rights opponents. She said it was directed toward women and men protesting on both sides. The Supreme Court struck down the law after the buffer zone was widened to 35 feet.
Past sentences on child pornography cases
A handful of conservative lawmakers have accused Jackson of handing down lighter sentences in child pornography cases she presided over. When asked about those cases by Committee Chairman Dick Durbin, D-Illinois, she firmly pushed back.
"Nothing could be further from the truth," Jackson said. "In every case, it's important to me that children's voices are represented in my sentence."
She added that she strove to hand down sentences that are "sufficient but not more than necessary."
Several media outlets, including The Associated Press, have shot down claims that Jackson's child pornography sentences were lighter than other judges.
On Wednesday she said, "I take these cases very seriously as a mother, as someone who, as a judge has to review the actual evidence in these cases and based on Congress' requirement, taken into account, not only the sentencing guidelines, not only the recommendations of the parties but also things like the stories of the victims. Also things like the nature and circumstances of the offense and the history and characteristics of the defendant," Jackson said during Tuesday's hearing, "I did my duty to hold the defendants accountable in light of the evidence and the information that was presented to me."
"I said before, these are horrible cases that involve terrible crimes, and the court is looking at all of the evidence consistent with Congress's factors for sentencing," Jackson said later in the hearing. "The guidelines are one factor, but the court is told that you look at the guidelines but you also look at the nature and circumstances of the offense, the history and characteristics of the offender. There are a series of factors. In the cases, you are also getting recommendations, and in most of the cases I haven't pinned it all down, but in most of the cases if not all of the cases the government is asking for a sentence below the guidelines because this guideline system is not doing the work in this particular case."
Cameras in the Supreme Court
When asked by Grassley if she thought cameras should be allowed in the Supreme Court, Jackson said she would need to speak with other members of the court before forming an opinion on the matter.