In a marathon second day of Senate hearings on her nomination to the Supreme Court, Judge Ketanji Brown Jackson faced hours of questioning from members of the Judiciary Committee, focusing on everything from her overall judicial philosophy to highly specific queries about rulings she has issued and briefs she has filed.
Jackson, the first Black woman to be nominated to a seat on the nation’s highest court, appeared at the hearing one day after she and members of the committee spent several hours delivering their opening statements. Republicans on the panel had signaled that they would challenge her on a variety of issues. On Tuesday, each member had 30 minutes to question Jackson.
Democrats spent much of their allotted time speaking cordially with Jackson, rather than asking pointed questions.
They alternated with Republicans, who generally pressed Jackson more forcefully on topics ranging from same-sex marriage to sentencing those convicted of possessing child pornography.
Committee chairman, Democrat Dick Durbin, started off the questioning and used much of his time giving Jackson the opportunity to preemptively address some of the controversial topics that Republicans were expected to bring up.
On the topic of expanding the number of justices on the court — a strategy that some Democrats have advocated as a way of diluting the influence of conservative justices, and which Republicans deride as “court packing” — Jackson told Durbin she shouldn’t express an opinion.
“My North Star is the consideration of the proper role of a judge in our constitutional scheme,” she said. “And in my view, judges should not be speaking to political issues — and certainly not a nominee for a position on the Supreme Court.”
The answer aligned Jackson with sitting Justice Amy Coney Barrett, who offered a similar answer in her own 2020 confirmation hearing.
Durbin let Jackson address several other controversial topics expected to arise, including her representation of terrorism suspects as a federal public defender, and her sentencing decisions in cases related to child pornography.
Referencing her representation of terrorism subjects held at the U.S. military facility at Guantanamo Bay, Cuba, she pointed out that public defenders do not choose their clients, but are obligated to provide them with the most effective defense possible. It is that respect for the rights of the accused, she said, that makes the American system of justice “the best in the world.”
On allegations by some Republicans that she has “gone easy” on individuals found guilty in child pornography cases, Jackson said, “Nothing could be further from the truth.”
She said her sentences had been within federal guidelines and that she often supplemented them with restrictions preventing the perpetrator from accessing certain technology often used to distribute such material.
Specific legal questions
Some Republican members of the committee pressed Jackson on very specific legal issues.
Senator Charles Grassley, the most senior Republican on the panel, asked about her position on allowing cameras in the Supreme Court’s chamber. Jackson dodged the question, saying she would not be comfortable answering until she had spoken to other justices on the topic.
Grassley also asked her to address the False Claims Act, a federal law that allows whistleblowers to receive a share of money recovered in cases of fraud against the federal government. Jackson said she was “loath to comment” on an issue that had not yet been presented to the court.
Senator Mike Lee asked Jackson to comment on the Ninth Amendment to the U.S. Constitution, which includes the concept of “unenumerated rights.” He asked her what rights have been identified as flowing from the amendment.
Conservatives have long been concerned that the amendment has been used to “create” new rights not mentioned in the Constitution, such as the right to an abortion, or for same-sex couples to marry.
“As I understand, it (the Constitution) has not identified any particular rights flowing directly from the Ninth Amendment, although, as you said, the text of the amendment suggests that there are some rights that are not enumerated,” Jackson replied.
Lee asked Jackson if she and President Joe Biden had discussed the right to abortion before her nomination. She replied that they had not.
The hearing produced its share of unusual moments. Early in the day, Republican Senator Lindsay Graham asked Jackson, “So, on a scale of one to 10, how faithful would you say you are, in terms of religion?”
Jackson balked at the question, reminding Graham that there is no religious test of officeholders in the U.S.
Graham quickly made it clear that his interest was not in Jackson’s own religious beliefs, but rather in calling attention to what he felt was the mistreatment of Barrett, who was asked about her association with a Catholic organization during her hearings.
Later, Republican Senator John Cornyn demanded of Jackson, “Why in the world would you call (former) Secretary of Defense (Donald) Rumsfeld and (former President) George W. Bush war criminals in a legal filing?”
Jackson seemed momentarily confused by the question. It was later revealed in the hearing that in a court filing made while she represented a detainee at Guantanamo Bay, she had argued that cases in which the United States used torture on prisoners “constitute war crimes and/or crimes against humanity in violation of the law of nations under the Alien Tort Statute.” Bush and Rumsfeld were both named as respondents in the brief.
Republican Senator Ted Cruz sparred with Jackson over critical race theory, demanding to know if the obscure legal theory about racism in U.S. institutions is taught at Georgetown Day School, where Jackson serves on the board of directors.
At one point, Cruz held up a children’s picture book called “Antiracist Baby” that he said had been assigned at the school. He asked Jackson if she agreed with the book, which he characterized as saying “babies are racist.”
Jackson sighed audibly and said, “I do not believe 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. I don’t believe in any of that.”
She then reminded Cruz that she was there to speak about her work as a judge.
The end result of Jackson’s nomination process is not seriously in doubt, because her nomination can be approved with a simple majority vote in the Senate.
Because Democrats hold 50 of the 100 seats in the Senate, and Vice President Kamala Harris can break a tie, it is widely expected that Jackson’s nomination will be reported to the Senate favorably by the Judiciary Committee, and will ultimately be approved.