Supreme Court pick Jackson fights back against GOP criticism over sentencing, Gitmo defense

"I am acutely aware that as a judge in our system, I have limited power," said Ketanji Brown Jackson of her judicial approach. "And I am trying in every case to stay in my lane."

John Fritze

WASHINGTON – Supreme Court nominee Judge Ketanji Brown Jackson fought back Tuesday against Republican criticism that she is soft on crime while parrying thorny questions about how she would rule in the culture war battles that frequently appear on the docket of the nation's highest court, from abortion to LGBTQ rights.

Jackson, who would replace retiring Associate Justice Stephen Breyer, repeatedly sought to define herself as an independent jurist who respects the "limited power" of judges under the Constitution. Like previous Supreme Court nominees, Jackson mostly dodged questions about expanding the size of the Supreme Court's nine-member bench or allowing cameras into its courtroom.

In a marathon first day of questioning from members of the Senate Judiciary Committee, Jackson avoided any missteps that would change the narrative that she is on a path to confirmation as the first Black woman to serve on the Supreme Court. Republicans asked probing questions about her record and judicial philosophy, but there were few theatrics as Jackson repeatedly delved deeply into her approach to the law. 

"I am acutely aware that as a judge in our system, I have limited power," said Jackson, a Harvard-educated lawyer who has served on the U.S. Court of Appeals for the D.C. Circuit since June. "And I am trying in every case to stay in my lane."

Several Republicans focused on Jackson's near-decade tenure as a trial court judge and roughly a dozen cases involving child pornography and other sex crimes in which she handed down sentences below guidelines recommended by the U.S. Sentencing Commission. Speaking for the first time on the issue, Jackson said that she understood "how damaging, how horrible" those crimes are but that her sentences were fair. 

"These are some of the most difficult cases that a judge has to deal with because we're talking about pictures of sex abuse of children," Jackson told the committee. The guidelines were just one factor she considered in sentencing, along with the nature of the offense and the "history and characteristics" of the person convicted of the crime, she said.

Under Supreme Court precedent, those guidelines are not mandatory.

But Sen. Josh Hawley, R-Mo., said he is disturbed Jackson has consistently sentenced defendants in the cases to less than what both prosecutors and the guidelines recommended. Jackson countered that her sentences were often in line with or above the recommendations from the U.S. Probation Office.

"I am questioning your discretion, your judgment," Hawley said in one of the more tense moments of the hearing. "That's exactly what I'm doing. I'm not questioning you as a person....I'm questioning how you use your discretion." 

Jackson also defended her representation of Guantanamo Bay detainees after the Sept. 11 attacks as a federal public defender and later as a private attorney who filed friend-of-the-court briefs on behalf of outside organizations. Critics, including the Republican Party, blasted out news releases that accused Jackson of "defending terrorists."

Jackson described her work for the detainees as serving the constitutional requirement that criminal defendants receive legal representation.

“We couldn’t let the terrorists win by changing who we were fundamentally, and what that meant was that the people who were accused by our government of having engaged in actions related to this, under our constitutional scheme, were entitled to representation – are entitled to be treated fairly,” she said. “That’s what makes our system the best in the world.”

Jackson declined to get pinned down on questions about legal controversies that have tripped up other nominees to the Supreme Court. Pressed on her opinions about abortion, Jackson said the landmark Roe v. Wade decision in 1973 that established a constitutional right to the procedure remained "settled as precedent." She didn't discuss the fact that the high court is considering a case that could unsettle it, potentially upending the reproductive rights framework that's been in place for decades

Sen. Lindsey Graham, R-S.C., questions Supreme Court nominee Ketanji Brown Jackson during her confirmation hearing before the Senate Judiciary Committee, Tuesday, March 22, 2022, in Washington. At left is Sen. John Cornyn, R-Texas, and Sen. Chuck Grassley, R-Iowa, right. (AP Photo/Evan Vucci) ORG XMIT: DCEV114

In another topic playing out in federal courts, Sen. John Cornyn, R-Texas, pressed Jackson for her view about the conflict between LGBTQ rights and freedom of religious exercise claims. The Supreme Court has repeatedly resolved disputes involving religious entities or individuals that oppose providing services to same-sex couples.     

Cornyn noted that many of those cases have followed the court's blockbuster decision in 2015 legalizing same-sex marriage.  

"You see that when the Supreme Court makes a dramatic pronouncement about the invalidity of state marriage laws, that it will inevitably set in conflict between those who ascribe to the Supreme Court's edict and those who have a firmly held religious belief that marriage is between a man and a woman?" Cornyn asked. 

"These issues are being litigated," Jackson responded. "I'm limited in what I can say."

Jackson offered glimpses into her judicial philosophy throughout the hearings. The Miami native told Sen. Chuck Grassley, R-Iowa, that she didn't believe there is a "living Constitution" in the sense that the meaning of the words in the founding document changes with time or is "infused with my own policy perspective." 

Instead, she said, "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, and what the meaning was then as a constraint on my own authority. And so I apply that constraint." 

Some Republicans on the committee read that as a nod to originalism, a legal theory that emphasizes interpreting the founding document's words as they were understood at the time they were written and ratified.

Pressed by Sen. Ted Cruz, R-Texas, on the issue of how schools teach students about systemic racism, Jackson said she had not studied the issue and that it isn’t relevant to her work on the federal bench.

Jackson veered around a number of other controversial questions, declining to say whether she supported the idea of expanding the nine-member high court. That, she noted, was a decision for Congress, not judges. Asked what she thought of allowing cameras to record the Supreme Court's oral arguments, Jackson said she would prefer to discuss the issue with other members of the court before taking a position.

Even some of her critics have acknowledged Jackson probably already has the votes needed for confirmation. The temperature of her hearings has remained low in part because she would not upset the conservatives' 6-3 advantage on the Supreme Court. Jackson, if confirmed, would replace Breyer, who was nominated by President Bill Clinton and is a reliable vote for the court's liberal wing in many high-profile cases. 

One of the more tense moments in Tuesday's hearings didn't involve Jackson at all but rather a debate between Sen. Lindsey Graham, R-S.C., and Senate Judiciary Committee Chairman Dick Durbin, D-Ill. Durbin asserted that 39 detainees remain at Guantanamo Bay and that the cost of housing them would be dramatically less if they were transferred to a supermax federal prison in Colorado.

The two squabbled over the recidivism rate and policy of detention at Guantanamo Bay before Graham fumed that the cost of housing prisoners shouldn't matter if there is the possibility they could kill Americans while the country is "at war."

"I hope they all die in jail if they're going to go back to kill Americans," Graham said, his voice raised, before he left the room. "It won't bother me one bit if 39 of them die in prison."

Contributing: Courtney Subramanian, Dylan Wells, Ella Lee, David Jackson, Phillip M. Bailey, Rick Rouan, Chelsey Cox.