Four GOP senators who should go back to law school

Senate Judiciary Committee members Lindsey Graham (R-S.C.), Ted Cruz (R-Texas), Josh Hawley (R-Mo.) and Tom Cotton (R-Ark.) rode roughshod over the record of Judge Ketanji Brown Jackson in weeklong confirmation hearings to assess whether the full Senate should advise and consent to her momentous nomination to the U.S. Supreme Court. If confirmed, she would replace the retiring liberal Justice Stephen Breyer and become the first African American woman to serve on the Court in its 233-year history. 

En masse Republican opposition to her nomination is said to be “escalating,” and confirmation, while likely, is not assured. The appointment of Judge Jackson would be particularly significant for Republicans. Hard-right conservative Justice Clarence Thomas is 73 years old. With his recent hospitalization and possible retirement, Jackson’s appointment could lead to the restoration of a four-four liberal-conservative deadlock with Chief Justice John Roberts casting the deciding vote on the thorny ideological issues that come before the Court: gays, guns and God, as well as women’s reproductive rights and criminal justice. 

Hawley’s attacks particularly have been sharp and unprincipled. The centerpiece of Hawley’s objection appears to be Judge Jackson’s sentencing record as a district judge in cases involving child pornography. 

In a 2013 case, Jackson sentenced a 19-year-old offender to three months in jail followed by six years of supervised release. Defendant Wesley Hawkins was convicted of possession of child porn downloaded from the internet. There was no charge that he distributed, purchased, sold or created the offending material.

None of the senators were privy to the complete record before Judge Jackson in the Hawkins sentencing. At the sentencing hearing, there were statements of the prosecutor and the defense counsel and a confidential pre-sentencing report of the probation department after a full investigation of the relevant facts and circumstances.

That report has remained under seal. Outmoded sentencing guidelines for the offense called for a sentence of up to 20 years in prison. The prosecutor recommended a sentence of two years, contending that Hawkins’s possession of the material was “extremely troubling and deserving of punishment.” Defense counsel argued that Hawkins was young and remorseful and suffered from “emerging mental illness.” The probation department recommended a sentence of 18 months. 

Judge Jackson’s sentence was not out of line with other federal sentences of those similarly situated, and Hawley at least three times had voted to confirm Trump-appointed judges who had sentenced child pornography defendants well below the guidelines.

Under the 2005 Supreme Court decision in United States v. Booker, notably concurred in by, among others, Justices Scalia and Thomas, the sentencing guidelines were declared to be advisory and not binding on sentencing judges. The guidelines, which all agree are badly in need of reform, are promulgated by the United States Sentencing Commission, a bipartisan independent agency created to reduce sentencing disparities and “promote transparency and proportionality in federal criminal sentencing.” Judge Jackson served as vice chair of the Commission from 2010 to 2014.

The quartet of GOP senators, who sounded more like late-night-radio talk show hosts than good faith seekers of truth, came down hard on Jackson for being “soft on child porn.” Hawley pounded her repeatedly on whether she regretted the decision in the Hawkins case, and implied without foundation that after Hawkins was released, he repeated the offense. 

All four of the senators are seasoned lawyers. Three of them, Cruz, Hawley and Cotton, attended Ivy League law schools. They should have known better. None of them brought out that if the government found fault with any of the sentences Jackson imposed below the guidelines, they could have appealed her rulings. There was nothing in the record to suggest that they ever did.

Child pornography is a particularly egregious crime as it victimizes and exploits the defenseless. Possession is a crime, as well as manufacture and distribution, since if there were no consumers, there would be no creators or sellers. Mere possession, however, particularly by a young person, in the absence of anything else, is obviously not so egregious a crime as manufacture and distribution by a twisted pedophile.

It is amazing that Graham, who voted to confirm Jackson as a federal appellate judge less than a year ago, switched positions and railed so strongly against her that he stormed out of the hearings in high dudgeon. Underscoring how disingenuously partisan is the attack on Jackson, the American Bar Association rated her “well qualified” for the Court, using such terms as “brilliant,” “beyond reproach,” “impeccable” and “A-plus” to describe her.

Republicans also raised concerns about Judge Jackson’s pro bono representation of some Guantanamo detainees in the period 2005-2009. Following the Supreme Court’s decision in Rasul v. Bush, affording Guantanamo residents habeas corpus rights, hundreds of leading lawyers, coming from the best law firms in the country, volunteered to provide legal assistance. On the team put forward by the Federal Defender’s Office in Washington or by the large corporate law firm she joined subsequently was Ketanji Brown Jackson.

Defense lawyers have played an indispensable role in the justice system going back to the founding of the Republic. John Adams defended soldiers accused of the Boston Massacre. His son, John Quincy Adams, defended African slaves accused of the Amistad seizure.

In 2009, Graham himself, who has not always been noted for consistency, made a perfect statement of the point when there was criticism of lawyers who had represented Guantanamo detainees and then joined the Obama Justice Department: 

“I’ve been a military lawyer for almost 30 years. I represented people as a defense attorney in the military that were charged with some pretty horrific acts, and I gave them my all…This system of justice that we are so proud of in America requires the unpopular to have an advocate and every time a defense lawyer fights to make the government do their job, that defense lawyer has made us all safer.”

A priest is never vilified for confessing a hardened criminal; nor is a doctor for treating a villainous patient. But a lawyer, quite strangely, stands reviled as “soft on crime” for zealously vindicating a defendant’s constitutional right to counsel. 

Judge Jackson has all the makings of a superb mainstream justice, and the full Senate will vote on her nomination early next month. President Biden said he wanted to see a bipartisan confirmation. The appointment of an able justice should be a shared bipartisan value, for they are the keepers of our sacred right to justice. If she is confirmed by only a Democratic majority, it will be a sad day for the United States Senate.

James D. Zirin, a former federal prosecutor in the Southern District of New York, is the author of “Supremely Partisan: How Raw Politics Tips the Scales in the United States Supreme Court.”