U.S. Supreme Court nominee Ketanji Brown Jackson, in the first day of questioning from senators, forcefully defended herself from accusations from at least two Republicans that she handed out lenient sentences to defendants convicted of possessing child pornography.
With Jackson taking notes, Missouri Sen. Josh Hawley on Monday said in his opening statement that his research showed that she had a pattern of issuing lower sentences in child pornography cases, repeating comments he wrote in a Twitter thread last week. Tennessee Sen. Marsha Blackburn during her time also raised that accusation.
At the beginning of Tuesday's session, Democratic judiciary committee chair Dick Durbin of Illinois gave Jackson a chance to express what was going through her mind during the previous day's accusations of leniency.
"As a mother and a judge who has had to deal with these cases, I was thinking that nothing could be further from the truth," Jackson responded. "These are some of the most difficult cases judges have to do deal with."
Jackson said that during sentencing for offenders who download child porn images, she confronts them about the impact on victims.
"I say to them there is only a market for this kind of material because there are 'lookers,' that they are contributing to child sex abuse," Jackson said.
In his statements, Hawley highlighted the maximum penalties for each offence in cases Jackson adjudicated, but not always the prosecutor or defence sentencing proposals. Federal judges routinely impose penalties under the guidelines — which are only advisory — in cases involving defendants who do not themselves produce child pornography, according to the U.S. Sentencing Commission.
Jackson's "sentencing practices for child pornography cases are squarely within the mainstream of federal district court judges nationally," a group of sentencing experts said in a March 20 letter to the committee.
Defends representing Guantanamo detainees
Blackburn on Monday castigated Jackson for representing "terrorists."
Jackson worked from 2005 to 2007 as a court-appointed lawyer paid by the government to represent criminal defendants who could not afford counsel, including some accused of terrorism offences detained at Guantanamo Bay.
"All of our liberty is at stake if we don't get it right," she said Tuesday.
Jackson told the panel that the Sept. 11, 2001, attacks on the United States were tragic but that "we couldn't let the terrorists win by changing who we were fundamentally," with respect to the right to counsel.
Jackson, a federal appeals court judge who is President Joe Biden's nominee to replace Justice Stephen Breyer, would be the only Black female justice in the court's 233-year history if confirmed. She would be the 116th justice in history, but just the third Black justice and sixth female justice overall.
Earlier in her career, Jackson served as a clerk for Breyer.
Republicans are trying to use her nomination to brand Democrats as soft on crime, an emerging theme in midterm election campaigns. Biden has chosen several former public defenders for life-tenured judicial posts.
Hawley is one of several committee Republicans, along with Ted Cruz of Texas and Tom Cotton of Arkansas, who are potential 2024 presidential candidates, and their aspirations may collide with other Republicans who would prefer not to pursue a scorched-earth approach to Jackson's nomination.
Republican support in question
Members of the judiciary panel are already familiar with Jackson, who appeared before them last year after Biden chose her to fill an opening on the federal appeals court in Washington. She was also vetted by some still on the committee and confirmed by the Senate as a district court judge under President Barack Obama.
She received three Republican votes in last year's confirmation — from Susan Collins of Maine, Lisa Murkowski of Alaska and South Carolina's Lindsey Graham — but no Republicans have yet announced an intention to vote in her favour, preferring to let the hearings play out.
The hearings are not expected to be as explosive as those in 2018 for Brett Kavanaugh, who was accused of sexual misconduct in his past, or perhaps even as contentious as those of 2020, when Republican senators fast-tracked Amy Coney Barrett's hearings after the death of Ruth Bader Ginsburg so that they could occur before that November's presidential election.
As well, a confirmation of Jackson would not change the court's 6-3 conservative majority, led by Chief Justice John Roberts.
But the final vote count is likely to reflect the polarized nature of the two American parties in recent years. In contrast, Breyer was confirmed with an 87-9 vote in his favour in 1994, while conservative Antonin Scalia in 1986 did not receive a single vote in opposition to his nomination.
Democratic leaders are hoping for some Republican support again, but can confirm her with the support of only Democrats in the 50-50 Senate, as Vice-President Kamala Harris can cast a tie-breaking vote.
