Following President Biden’s nomination of Judge Ketanji Brown Jackson to the Supreme Court, Republican senators promised that the confirmation hearings would be “respectful,” and not “a spectacle.” Spurious attacks, Sen. Mike Lee (R-Utah) warned, “could undermine the Court’s legitimacy.”
The Judiciary Committee proceedings, however, were a farce, featuring faux outrage, interruptions, grandstanding, and cheap shots at Judge Jackson’s record, designed to score political points on issues unrelated to her decisions, judicial philosophy or methodology.
With the Judiciary Committee vote scheduled for April 4, it may be useful to review the conduct of Republicans.
Sen. Marsha Blackburn (R-Tenn.) claimed Judge Jackson attacked pro-life women. “When you go to church, and knowing there are pro-life women there,” Blackburn asked, “do you look at them, thinking of them in that way, that they’re noisy, hostile, in your face? Do you think of pro-life women like me in that way?”
Jackson had, indeed, used the phrase “hostile, noisy crowd” — but she was referring to angry protestors confronting pregnant women in her support for buffer zones around clinics. She was not denigrating all — or even most — pro-life women.
Sen. Blackburn also asserted that Jackson “used her time and talent not to serve our nation’s veterans or other vulnerable groups, but to provide free legal services to help terrorists get out of Gitmo and go back to the fight.” Although Sen. Lindsey Graham (R-S.C.) praised Jackson for representing Guantanamo Bay detainees when she was a public defender (“Everybody deserves a lawyer. You’re doing the country a great service when you defend the most unpopular people”), he chastised her for helping these men when she was in private practice. “I hope they all die in jail,” Graham declared, and then stormed out of the hearing. Sen. Tom Cotton (R-Ark.) asked if Jackson wanted to apprehend “more murderers or fewer murderers” and whether she thought Americans would be safer if detainees were released.
As a public defender, Jackson was assigned to help four detainees file habeas corpus petitions. None of them had been charged, tried, or convicted of a crime. In private practice, she worked pro bono on one of these cases. It’s worth noting: Only 12 of the 780 individuals who have been incarcerated in Gitmo have been charged; only two have been convicted. The Supreme Court has ruled that Guantanamo Bay prisoners have a right to challenge their detentions in U.S. courts.
Sen. Ted Cruz (R-Texas) asked Judge Jackson, a member of the Board of Trustees of Georgetown Day School, if she agreed with the assertion in “Antiracist Baby,” a book taught in pre-K through 2nd grade classes at the school, that “babies are racists.” Brown 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 they are less than, that they are victims, that they are oppressors. I do not believe any of that.”
Undeterred, Cruz asked if Jackson had read any of the children’s books assigned at the school. “I have not,” she replied. “They don’t come up in my work as a judge, which I am respectfully here to address.”
Republican senators used most of their time interrogating Judge Jackson on the sentences she imposed on child pornographers when she was a district judge, a task she would not perform on the High Court. In a long Twitter thread, Sen. Josh Hawley (R-Mo.) maintained that “Judge Jackson has a pattern of letting child porn offenders off the hook for appalling crimes, both as a judge and as a policy member.” In every case, he claimed, “for which we have records, Judge Jackson deviated from the federal sentencing guidelines in favor of child porn offenders.”
“Do you believe child predators are misunderstood?” Sen. Blackburn asked her. The way to deter child pornographers, proclaimed Sen. Graham (who voted to appoint Jackson to the U.S. Court of Appeals for the D.C. Circuit in 2021), “is to put their asses in jail, not supervise their computer usage.” He would be happy to see anyone looking at child pornography on a computer sentenced to prison for 50 years, he said, adding: “You don’t think that’s a bad thing.”
Jackson’s inquisitors didn’t mention that in more than two-thirds of such cases, her fellow judges issued sentences below federal sentencing guidelines — or that most judges and prosecutors distinguish between people who watch or exchange pornography and those who produce it and commit child abuse — or that many district judges nominated by Republican presidents to appeals courts did not follow prosecutors’ recommendations.
They did not acknowledge that Judge Jackson generally agreed with those recommendations in cases involving both possession of child pornography and attempted or actual sexual abuse of a minor.
They didn’t mention — contrary to Sen. Graham’s allegations — that her sentences included time in prison and supervision following release, or that the bi-partisan Sentencing Commission has informed Congress that guidelines in crimes involving images of child sexual abuse “fail to differentiate among offenders in terms of their culpability,” resulting in penalty ranges that “are too severe for some offenders and too lenient for other offenders.”
The Judiciary Committee farce may or may not undermine the legitimacy of the Supreme Court. But, as Sen. Susan Collins (R-Maine) indicated on Wednesday, it does demonstrate that the confirmation process is “broken.” And it should undermine the credibility of her Republican colleagues, who turned an investigation into an inquisition.
Glenn C. Altschuler is the Thomas and Dorothy Litwin Professor of American Studies at Cornell University. He is the co-author (with Stuart Blumin) of “Rude Republic: Americans and Their Politics in the Nineteenth Century.”