Sen. Amy Klobuchar of Minnesota (Screenshot via the Senate Judiciary Committee livestream)
WASHINGTON — The U.S. Senate Judiciary Committee began questioning Supreme Court nominee Ketanji Brown Jackson on Tuesday, giving the federal judge her first opportunity to go into detail about her life and career.
Republicans, who seem unlikely to back her confirmation to associate justice, repeatedly pressed Jackson about her time as a federal public defender, how she approached sentencing people convicted in certain child pornography cases and her judicial philosophy.
Each senator was allocated 30 minutes. Here’s how some senators approached the questioning and how Jackson responded:
Sen. Chuck Grassley of Iowa, the top Republican on the committee and the first GOP senator to question Jackson, began his 30 minutes asking her about the First Amendment and then the Second.
Jackson said that she agreed that the right to free speech applies equally to conservative and liberal protestors. In addressing Grassley’s question about the Second Amendment, Jackson noted “the Supreme Court has established that the individual right to keep and bear arms is a fundamental right.”
Grassley then moved on to one of his long-time quests, getting cameras installed in the Supreme Court. Jackson didn’t give a direct answer, saying she would want to talk with other members of the court to “understand potential issues related to cameras in the courtroom before” she took a side in the years-long debate.
“I think that’s a fair answer at this point,” he said.
Grassley asked Jackson, who if confirmed would be the first Black woman on the court, to talk about race in American society, referencing a speech she gave to the University of Chicago Law School in 2020.
During that speech, he said, Jackson quoted Martin Luther King Jr., who said that he dreamt of a day when sons of former slaves and sons of former slave owners would be able to sit down at the table of brotherhood. Jackson, in the speech, then spoke about how American culture had changed after the civil rights movement and the passage of civil rights laws.
Jackson said she still agreed with what she said in her speech, noting that her parents had attended segregated schools in Miami, but that she had not experienced segregation in education.
“The fact that we had come that far was, to me, a testament of the hope and the promise of this country, the greatness of America that in one generation we could go from racially segregated schools in Florida to have me sitting here as the first Floridian ever to be nominated to the Supreme Court of the United States,” Jackson said.
Grassley asked Jackson numerous other questions, including her view on adding justices to the Supreme Court, a proposal known as “court packing” that Republicans vehemently oppose. He also asked whether so-called “dark money groups” that don’t need to disclose who donates to the organization have “bought” the Supreme Court, which she denied, and which of the former 115 justices’ judicial philosophies most closely resembles her own.
In response to the last question, Jackson said she hadn’t studied all of their judicial beliefs, but that she came to her confirmation hearings as a trial judge whose “methodology has developed in that context.”
“I don’t know how many other justices — than Justice Sotomayor — have that perspective. But it informs me with respect to what I understand to be my proper judicial role,” Jackson said.
Jackson declined to answer the question about potentially adding justices to the Supreme Court, saying that is a “policy question for Congress.”
Democratic Sen. Amy Klobuchar of Minnesota questioned Jackson about the Supreme Court’s so-called shadow docket, which doesn’t follow the usual process of a case making its way up through the federal court system before the Supreme Court hears oral arguments and then issues a ruling after months of deliberation.
Klobuchar said she was concerned about the increase in the number of these “emergency” cases the Supreme Court has decided in recent years, including that some decisions aren’t signed by any of the justices.
Klobuchar said it seems to her that Jackson’s preference to write lengthy opinions, spell things out and be transparent would be in contrast to the Supreme Court’s increasing use of a shadow docket.
“These decisions have a profound effect on people’s lives,” Klobuchar said.
The court’s one-paragraph decision last year to allow a Texas law barring abortion access after six weeks of pregnancy to go forward was one of its uses of the shadow docket, Klobuchar said.
Jackson said the Supreme Court’s emergency docket needs to strike a balance between “the need for flexibility, the need to get answers to the party at issue” and the court’s interest in allowing an issue to “percolate, allowing other courts to rule on things before they come to the court.”
Klobuchar also asked Jackson about whether the right to vote is fundamental.
“The Supreme Court has said that the right to vote is the basis of our democracy; that it is the right upon which all other rights are essentially founded because in a democracy there is one person, one vote,” Jackson said.
“And there are constitutional amendments that relate directly to the right to vote, so it is a fundamental right in our democracy.”
Talking about her father, who was a newspaper reporter, Klobuchar asked Jackson about how the Supreme Court has ruled in previous cases that address what journalists can and cannot do with the guarantee of freedom of the press in the First Amendment.
Jackson noted the court ruled in New York Times v. Sullivan in 1964 that journalists are protected from liability.
Republican Sen. Ben Sasse of Nebraska spent the vast majority of his time questioning Jackson about judicial philosophy, trying to get her to go beyond what she refers to as her judicial methodology.
Jackson told Sasse that while she doesn’t have a specific philosophy, she does believe that the Constitution is fixed in its meaning and that it’s “appropriate to look at the original intent, the original public meaning of the words when one is trying to assess” cases.
Jackson added that there are times when “looking at those words are not enough,” giving the example of how the Supreme Court has looked at the phrase “unreasonable searches and seizures” to decide whether police officers need warrants to look at the contents of a person’s cell phone.
“What I will say is that when you look at the language in the Constitution, there are some provisions that are completely clear on their face without any question of what was intended. The required age of senators, minimum age of the president. All you need is the text,” Jackson said. “There are provisions of the Constitution that are broader than that and therefore some interpretive frame is necessary.”
Every question the Supreme Court addresses in a case that includes new technology, she said, would require some sort of analogy.
“But I can’t speak to anything more than that,” Jackson said.
Jackson also said that she’s a strong believer in precedent, in predictability and “in the rule of law and the way that the law now interprets the Constitution is through this historical frame.”
Sasse didn’t seem completely satisfied with Jackson’s answers, saying toward the end of his 30-minute window that he still believes there is “a very basic difference between a judicial philosophy and a judicial methodology in how you go about applying that when you’re interpreting the law and making a determination about constitutionality.”
Sasse said he knew that Jackson hadn’t claimed a judicial philosophy, especially not a view of originalism in her testimony, but said the fact she “at least nodded to it” was “in and of itself a pretty great testimony to how much” the late Justice Antonin Scalia and the late Judge Robert Bork had “moved the legal field.”
Republican Sen. Josh Hawley of Missouri spent his time questioning Jackson about why she sentenced certain defendants convicted of possession of child pornography below the guidelines and below the prosecutor’s recommendation.
Hawley focused much of his time on United States v. Hawkins, in which Jackson sentenced an 18-year-old defendant to three months in federal prison for what she referred to as “heinous” and “egregious” offenses.
Hawley appeared particularly frustrated when reading from Jackson’s comments to the defendant at the sentencing hearing, during which he characterized her as apologizing to the defendant and saying it was a “truly difficult situation.”
“Is he the victim or are the victims the victim?” Hawley asked.
Jackson said that she didn’t have the entire record of the case in front of her but added that she remembered considering that case to be “unusual,” in part because the defense attorney was arguing for probation and the 18-year-old defendant had just graduated from high school.
“I don’t remember in detail this particular case, but I do recall it being unusual,” Jackson said. “So my only point to you is that judges are doing the work of assessing in each case a number of factors that are set forward by Congress — all against the backdrop of heinous criminal behavior.”
Hawley said that he wasn’t questioning Jackson as a person, but was questioning her discretion and her judgment in those cases.
Sen. Cory Booker, a New Jersey Democrat, defended Jackson’s record and experience during his question time, saying that Republican criticisms of her “really didn’t hold water.”
Booker said that Jackson was “well within the norm for going below the sentencing guidelines” in certain criminal cases, adding that the data showed she was not an outlier.
“I kind of sat here and was a little insulted,” Booker said of Republican commens about Jackson’s sentencing practices.
Jackson, he noted, is a mother of two, who has been confirmed three times by the U.S. Senate, who has victim advocacy groups writing letters on her behalf, who has child victims advocacy groups supporting her nomination and who presided over “fact-specific cases of the most heinous crimes.”
“I just want America to know that when it comes to my family’s safety; when it comes to Newark, New Jersey; or my state, God, I trust you,” he said.
Booker’s final question to Jackson was about part of her opening statement, in which she spoke about juggling the responsibilities that come with being a working mom.
Telling a story about his own mom staying home with him when he had the chickenpox, after a young Booker told her he would “die” if she left for work, he asked Jackson to detail what she meant.
“It’s a lot of early mornings and late nights and what that means is there will be hearings during your daughters’ recitals, there will be emergencies on birthdays that you have to handle,” Jackson said. “And I know so many young women in this country, especially who have small kids, who have these momentous events and have to make a choice.”
Jackson said she felt she didn’t always get the balance right, but she hopes being confirmed to the Supreme Court would show her daughters that they “don’t have to be perfect” in their career trajectory to end up doing what they want.
“You don’t have to be a perfect mom. But if you do your best, and you love your children that things will turn out okay,” Jackson said.
Louisiana GOP Sen. John Kennedy started off his questioning by telling Jackson he enjoyed listening to her answer questions during the first 12 hours of the day.
“I find you to be very intelligent and very articulate,” Kennedy said. “I’m still a little uncertain about how you think, how you approach deciding cases.”
Kennedy asked Jackson numerous times about whether she supports a proposal by some left-leaning lawmakers and organizations to increase the size of the Supreme Court.
Jackson mostly declined to answer the question saying that is a political question for Congress to decide, though she did wade in just a bit when she said that she didn’t have a “strongly held opinion.”
“I have a lot of opinions about a lot of things,” Jackson said. “I don’t have an opinion that I think it appropriate to share.”
Kennedy also grilled Jackson about how the Supreme Court decides that a new unenumerated right, or a right not explicitly mentioned in the Constitution, exists.
Kennedy seemed frustrated with the court’s decision to do this in previous cases and the possibility it would do so again in the future, noting that there isn’t a “test” for determining if something is an unenumerated right.
Sometimes the court, Kennedy said, says unenumerated fundamental rights “have to be deeply rooted in the nation’s history and traditions” and other times the court says “the right has to be implicit in the concept of ordered liberty.”
Kennedy asked Jackson if she understood why some Americans would wonder if justices are interpreting the Constitution or if they are “just deciding a right when they get five votes, and it’s just a moral conviction?”
Jackson said she could understand.
Kennedy later asked Jackson if she held opinions about when life began and when equal protection of the law attaches to a human being.
To the first question, Jackson said she has “personal religious and otherwise beliefs that have nothing to do with the law in terms of when life begins.”
She said she didn’t know the answer to the question about equal protection.
Sen. Marsha Blackburn, a Tennessee Republican, wrapped up the 13 hours of questioning Tuesday by asking Jackson a bevy of questions.
Blackburn, the most junior Republican on the panel, started off quizzing Jackson about a brief she wrote more than two decades ago while in private practice that referred to anti-abortion protestors outside health care clinics as a “hostile, noisy, crowd of in-your-face protestors.”
“How do you justify that rhetoric?” Blackburn asked.
Jackson noted the case had to do with the issue of so-called buffer zones, or how much space anti-abortion protestors in Massachusetts needed to keep between themselves and people visiting a clinic.
“I drafted a brief along with the partners in my law firm, who reviewed it. And we filed on behalf of our client to advance our client’s arguments that they wanted to make in the case,” Jackson said.
Blackburn then asked Jackson how she could go to church, assuming there are anti-abortion women at her church, thinking those women are noisy, hostile and “in your face.”
Jackson reiterated that she was writing on behalf of clients in a brief and that’s not the way she thinks about or characterizes people.
Blackburn later asked Jackson if she could provide a definition of a woman, which Jackson declined to provide in the context of a Supreme Court confirmation hearing.
“In my work as a judge, what I do is address disputes,” Jackson said. “If there is a dispute about a definition, people make arguments and I look at the law and I decide.”
Blackburn also asked Jackson how she would rule if a case came before the Supreme Court that asked the court to decide the number of justices it should have.
“It’s very unlikely that the issue of court packing would come before the Supreme Court,” Jackson said. “That question is in the province of Congress. It’s a political question.”
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