Supreme Court nominee Jackson defends record, plans to recuse in affirmative action case

"I know how serious this crime is," Jackson said in a sharp exchange with Sen. Lindsey Graham, R-S.C., who joined other Republicans in criticizing her sentencings in some child pornography cases.

John Fritze

WASHINGTON – Supreme Court nominee Judge Ketanji Brown Jackson defended her record during a third round of hearings Wednesday as Republicans coalesced around themes that she is soft on crime and vague about her approach to the Constitution.

But even as Republicans on the Senate Judiciary Committee quizzed Jackson about her sentences in child pornography cases and accused her of "activism" during a decade on the federal bench, some – including Sen. Thom Tillis, R-N.C. – acknowledged she is likely to be confirmed as the first Black woman to sit on the nation's highest court.

After enduring a 13-hour hearing the day before, Jackson and the committee's 22 senators returned Wednesday to relitigate many of the same issues. Republicans pressed Jackson, who sits on the U.S. Court of Appeals for the D.C. Circuit, about opinions in which she ruled against President Donald Trump and repeatedly tried to get her to say whether supports adding justices to the nine-member Supreme Court.

Cases:A look at the child pornography cases at issue in Jackson's hearings

Response:Supreme Court pick Jackson fights back against GOP criticism 

"If you haven't had to develop a philosophy for deciding cases yet, what else do you think would be helpful for us to look at?" asked Iowa Sen. Chuck Grassley, the top Republican on the committee.

Jackson asserted that her philosophy is grounded in her years of work as a trial court judge. The approach, which Jackson called her "methodology," involves looking at cases impartially and with an appreciation for the limited role judges have under the Constitution to decide cases rather than make policy. 

"What that means," Jackson said, "is that at the beginning of every case, I am setting aside my personal views."

Jackson used the hearing Wednesday to announce that, if confirmed, she would recuse herself from a potentially blockbuster case pending at the Supreme Court challenging affirmative action policies at Harvard University and the University of North Carolina.

Jackson, who earned her undergraduate and law degrees from Harvard, serves on the university's board of overseers, and Republicans had for several days before the hearing questioned whether the role presented a conflict of interest. 

Asked by Sen. Ted Cruz, R-Texas, whether she would recuse in the case, Jackson responded: “That is my plan, Senator.”

Supreme Court nominee Ketanji Brown Jackson answers questions at her confirmation hearing on March 23, 2022.

Several Republicans homed in on an issue that in the first day of the hearings was raised by only a few critics: a handful of cases involving child pornography in which Jackson handed down sentences that were below what prosecutors had sought and also what was recommended by U.S. Sentencing Commission guidelines.    

In one of the sharpest exchanges yet over that issue, Jackson told Sen. Lindsey Graham, R-S.C., that she had sent every one of the defendants in question to jail and asserted that she faithfully followed the sentencing process laid out by Congress. 

"Every person in all of these charts and documents I sent to jail, because I know how serious this crime is," Jackson said. "And on the other side of their terms of imprisonment, I ensured that they were facing lengthy periods of supervision and restrictions on their computer use so they could not do this sort of thing again."

"That's what Congress has required of judges," she added. "And that's what I did in every case."

Supreme Court Associate Justice nominee Ketanji Brown Jackson appears before the Senate Judiciary Committee during her confirmation hearing on March 23, 2022 in Washington. Judge Jackson was nominated by President Joe Biden to replace Associate Justice Stephen Breyer, who plans to retire at the end of the term. If confirmed, Judge Jackson will be the first Black woman to sit on the United States Supreme Court.

Graham and other Republicans were unsatisfied with that response, arguing that Jackson had failed to rely on sentencing "enhancements" in some of the cases that could have increased jail time for defendants. Jackson repeatedly noted that judges have wide discretion in deciding punishment.  

“All I can say is that your view of how to deter child pornography is not my view,” Graham said. “I think you're doing it wrong.”

The enhancements cited by Graham include considerations such as whether a computer was used to view or distribute the illicit images. Independent experts say that virtually all pornography today is viewed electronically today and argue the consideration is years out of date. The White House and independent experts have pushed back on the criticism, noting that U.S. Sentencing Commission data shows that the majority of those cases are sentenced under the guidelines.    

“She is currently not an outlier in sentencing,” said Senate Judiciary Committee Chairman Dick Durbin, D-Ill., who has said he hopes the Senate will move to a final vote on Jackson's confirmation before Easter. “Seventy percent of federal judges face the same dilemma and wonder why Congress has failed to act.”

Sen. Lindsey Graham, R-S.C., questions Supreme Court nominee Judge Ketanji Brown Jackson during her Senate Judiciary Committee confirmation hearing on  March 23, 2022.

There were also instances Wednesday when Republicans appeared just as likely to spar with Democrats on the committee about past confirmation battles rather than to engage directly with Jackson. At the beginning of the hearing, several Republicans accused Durbin of "editorializing" by interjecting after they had questioned Jackson. 

"I don't think it's appropriate for the chairman, after every time somebody on this side of the aisle asks questions of the judge, you come back and you denigrate, and you attack and you criticize the line of questioning," said Sen. John Cornyn, R-Texas, adding that the judge appeared to be doing a "pretty good job" of defending herself. 

Graham and other senior Republicans on the committee continued to focus much attention on previous nominees, including Supreme Court Associate Justice Brett Kavanaugh and Judge Janice Rogers Brown, whose 2003 nomination by President George W. Bush to the D.C. Circuit was stalled by Democrats for years.

Why, Graham asked, hadn't they received the same level of respect as Jackson? 

“This is not of your making," Graham acknowledged to Jackson as he pressed that criticism to his Democratic colleagues. "So it's really not about you.”

Contributing: Dylan Wells, Ella Lee, Phillip M. Bailey, Courtney Subramanian, Rick Rouan, Kevin McCoy