Top takeaways from second day of Jackson’s Supreme Court hearings

Committee Chairman Dick Durbin, an Illinois Democrat, asked Jackson what she thinks about court-packing, the concept of increasing the number of justices on the nine-member bench — a common concern raised by Republicans who say the number should not be altered.

But Durbin incorrectly claimed that Justice Amy Coney Barrett said during her confirmation hearings in 2020 that she “could not opine on it.” Without that context, Jackson said she agreed with Barrett’s response.

FIVE TAKEAWAYS FROM DAY ONE OF KETANJI BROWN JACKSON’S SUPREME COURT HEARINGS

She added, “My North Star is the consideration of the proper role of a judge in our constitutional scheme. And in my view, judges should not be speaking to political issues — and certainly not a nominee for a position on the Supreme Court.”

Sen. Chuck Grassley of Iowa, the top Republican on the panel, asked the judge about court expansion again when it was his turn for questioning, but Jackson did not offer a different answer.

‘Three steps’ to ‘judicial philosophy’

Durbin asked Jackson the question of her “judicial philosophy” that many Republicans have emphasized would be pertinent to their vetting process.

Jackson outlined her “three steps” methodology.

“The first step is, when I get a case, I ensure that I am proceeding from a position of neutrality,” Jackson said. “This means that, you know, you get a case, and it’s about something, and it’s submitted by certain parties. I am clearing my mind of any preconceived notions about how the case might come out and setting aside any personal views.”

Jackson said her second step is making sure she’s received all “appropriate inputs for the case,” and thirdly, she ensures proper “interpretation and application of the law to the facts.”

Later in the day, Jackson said in response to questioning by Sen. Lindsey Graham, a South Carolina Republican, that her philosophy is “to rule impartially and rule consistent with the limitations on my authority as a judge. And so my methodology actually helps me to do that in every case.”

When asked by Durbin if her philosophy resembled any past or current justices, Jackson said, “I haven’t studied the judicial philosophies of all of the prior justices.”

Jackson later stated her belief that the Constitution is “fixed in its meaning,” adding that she focuses on its “original public meaning.” Although Jackson did not outright describe herself as an originalist, her statement is one that is often associated with conservative-leaning justices.

Airing of grievances

Graham questioned Jackson about her faith and asked her to rate her level of faithfulness on a scale of 1-10. When Jackson said she was reluctant to discuss a personal matter, Graham said he was making a point about how religious tests are inappropriate, arguing that Barrett was treated poorly when she was questioned about her Catholic faith by committee member Sen. Dianne Feinstein, a California Democrat, during her confirmation hearing to an appeals court in 2017.

Sen. Sheldon Whitehouse, a Rhode Island Democrat, also relitigated previous hearings, using his time to criticize what he called right-wing dark money groups that influenced the selection of former President Donald Trump’s nominees. He rejected arguments that liberal groups influence the selection process while claiming that conservative groups ran ads against Jackson.

Whitehouse went so far as to argue dark money “built” the current Supreme Court, which has more Republican-appointed justices than those picked by Democratic presidents. Earlier in the day, Jackson rejected that assertion, telling Grassley, “I don’t have any reason to believe that that is the case.”

Later in the evening, a dispute erupted after Texas GOP Sen. Ted Cruz became upset, claiming GOP members received sentencing information from the White House related to Jackson’s record later than some Democrats.

New Jersey Democratic Sen. Cory Booker chimed in, saying, “I’m very upset. I join Ted Cruz,” and noting his office did not receive the information until much later in the day.

Roe v. Wade

Jackson said two landmark Supreme Court decisions on abortion, Roe v. Wade and Planned Parenthood v. Casey, are “settled law.”

Questioned on the cases by Feinstein, Jackson said the cases are “the settled law of the Supreme Court concerning the right to terminate a woman’s pregnancy.”

Jackson’s answer is a typical one for Supreme Court nominees, which allows them to avoid partisan questions about whether or not they would be willing to overturn Roe by acknowledging it as precedent.

But the question comes after the high court last year heard Dobbs v. Jackson Women’s Health Organization, a case regarding a Mississippi law banning abortion after 15 weeks of pregnancy. In its suit, the state directly asked the court to reconsider Roe and Casey, which some legal analysts and activists on both sides of the abortion debate believe could lead to a reversal or revision of those decisions. A decision in Dobbs is expected this summer.

Classmate Cruz pulls no punches

In a tense exchange, Cruz questioned Jackson about critical race theory and allegations that her sentences for child pornography offenders were overly lenient.

Asked for her views on critical race theory, she replied that it has “never been something I’ve studied or relied on” and has not and will not inform her work as a judge.

The concept of critical race theory is a vague one. Some say it is limited in scope to a graduate-level academic theory, while others argue it is any curricula that overlook the good in U.S. history by portraying the nation as fundamentally flawed due to its original sins, including racism and slavery.

Jackson argued the theory is limited to graduate schools but also said she rejects the idea that “any child should be made to feel as though they are racist or as though they are not valued or as though they are less than — that they are victims, they are oppressors.”

In addition, Cruz questioned Jackson on allegations that she issued lenient sentences to child pornography offenders, listing a series of cases in which she did not impose a maximum sentence. Jackson said a judge is obligated by law to consider factors other than the maximum sentence, and her sentences were within legal norms.

Jackson pushes back against child pornography sentencing claims

In a series of tweets last week, Missouri GOP Sen. Josh Hawley claimed 10 of Jackson’s sentences as a judge in these cases fell “below the government’s recommendations.”

Jackson said such cases are among the most difficult a judge will consider and that the law requires judges to issue sentences within guidelines rather than the maximum sentence in each and every case. But Jackson said the effect on victims weighs heavily in her consideration of sentences.

“In every case, when I am dealing with something like this, it is important to me to make sure that the children’s perspective, the children’s voices, are represented in my sentences,” Jackson said.

In emotional remarks, Jackson cited some of the victims’ statements that she said had an effect on her.

“I tell them about the adults who are former child sex abuse victims who tell me they will never have a normal adult relationship because of this abuse,” Jackson said.

Hawley repeated his allegations in Tuesday’s hearing, focusing on a specific 2013 case, United States v. Hawkins, involving an 18-year-old defendant whom Jackson sentenced to three months in federal prison despite the government requesting 24 months in prison.

“I’m having a hard time wrapping my head around it,” Hawley said. “We’re talking about 8-year-olds, 9-year-olds, 11-year-olds, and 12-year-olds. [The defendant had] images that added up to over 600 images, gobs of video footage. … If it’s not heinous or egregious, how would you describe it?”

Jackson said the case was “unusual” because, unlike the other cases she oversaw involving child pornography offenders and her previous work on the Sentencing Commission, “this particular defendant had just graduated from high school.”

Jackson also recalled a 2003 Supreme Court ruling, United States v. Booker, signed by the late Justice Antonin Scalia, which determined that the guidelines that Congress wanted to be mandatory would be made advisory and ultimately up to a judge’s discretion.

The Supreme Court ruled “that they couldn’t be, and Congress since then has not come back to amend them or to change them or to make them mandatory again,” Jackson argued.

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The discussion later devolved into a back-and-forth between Hawley and Durbin in which the chairman brought up cases in which Missouri Judge Sarah Pitlyk, whom Hawley backed, “sentenced an individual convicted of possession of child pornography to only 60 months, well below the 135-168 months sentence recommended by the guidelines.”

Durbin urged Hawley to propose legislation on the matter, arguing, “We should concede in the meantime that we’ve left judges in the lurch. In many of these situations, there is no clarity in this situation.”

Defining what a woman is

Sen. Marsha Blackburn, a Tennessee Republican, asked Jackson about a number of culture war issues, including efforts to permit or ban transgender student-athletes to compete on teams corresponding to their gender identity rather than their biological sex.

In the exchange, Blackburn asked Jackson, in her second day of confirmation hearings before the Senate Judiciary Committee, to define the word “woman.”

Jackson responded that she could not.

“You can’t?” Blackburn asked.

“Not in this context. I’m not a biologist,” Jackson said, adding, “In my work as a judge, what I do is address disputes. If there is a dispute about a definition, people make arguments, and I look at the law, and I decide.”