What was once shaping up to be a sleepy Supreme Court confirmation process turned contentious this week when Republican Sen. Josh Hawley of Missouri took to Twitter to question Supreme Court nominee Ketanji Brown Jackson’s record on child pornography cases.
Hawley raised a number of separate incidents that he claimed establish a pattern of Jackson being soft on defendants charged with child pornography, including her role in producing a 2012 United States Sentencing Commission report to Congress recommending that lawmakers reduce mandatory minimum sentencing for child pornography offenses.
Before we look at what the report says and Jackson’s role in producing it, let’s take a step back and review what the USSC is and why it was created. The USSC was created in 1984 by a Congress that was frustrated with wide disparities in sentences given to defendants convicted of similar crimes. Congress charged the USSC with devising sentencing guidelines for all federal crimes and then required federal judges to follow the commission’s guidelines unless they could identify an aggravating or mitigating factor.
Congress also charged the USSC with periodically reporting to Congress, and that is where the 2012 report on “Federal Child Pornography Offenses” came from. The USSC is made up of seven members, all appointed by the president and four of whom must be federal judges. Jackson was one of those judges.
While the report to Congress on child pornography sentences was unanimous among the commission’s members, it is important to remember that the commission is an independent agency with no lawmaking power. It can recommend to Congress that maximum and minimum mandatory sentences be changed, but it can’t change the law by itself. That would be a political decision that only Congress can make.
In this case, Congress took the USSC report and made the political decision not to lower the mandatory minimum sentence for child pornography offenders as the commission recommended. It doesn’t matter if Jackson was just one of seven commissioners who signed the report — she signed the report, and now that she is up for nomination to the Supreme Court, senators have every right to question the propriety of that recommendation.
Judge Jackson is entitled to her opinion that the child pornography mandatory minimum sentences are unjustly too high. We disagree. A Supreme Court nomination hearing is a perfect venue to air these views, and we look forward to the debate.
