Jackson’s judicial record gives GOP little room for target practice

WASHINGTON (CN) — A theme running through the confirmation hearings for the first Black woman nominated to the Supreme Court is that Judge Ketanji Brown Jackson is soft on crime, accusations that lawyers say have more to do with conservative talking points than the nominee's own record.

Before Jackson’s confirmation hearings even began this week, Missouri Republican Senator Josh Hawley made unfounded claims that Jackson routinely gave lenient sentences in child-pornography cases. Despite those accusations not being based in fact, they have consumed the proceedings.

“I believe you care for children, obviously your children and other children,” Texas Republican Senator Ted Cruz said. “But I also see a record of activism and advocacy as it concerns sexual predators that stems back decades, and that is concerning.”

Jackson has defended her sentencing decisions and said they are based on many factors including federal guidelines and recommendations from the probation office. And she’s not the only one defending her record. Outside experts agree that Jackson acted appropriately in the cases in question.

The irony is that senators are blaming Jackson for a problem of their own making.

“There is no evidence that she departed in a way that was unlawful when she was sentencing defendants that came before her as a trial judge at the federal level,” Alexis Hoag, a professor of law at Brooklyn Law School, said in a phone call. “In fact, it's Congress — this is the irony — Congress sets the factors that a judge can use when they decide what sentence to give.”

Another tactic being used to characterize Jackson as soft on crime is her record as a public defender. If confirmed, Jackson would be the first justice with experience as a federal public defender. While public defenders do not get to choose their clients, some senators have criticized Jackson’s defense of Guantanamo Bay detainees.

"I would just emphasize that that's the role of a criminal defense lawyer," Jackson said in response to questions about her representation of Guantanamo Bay detainees. "Criminal defense lawyers make arguments on behalf of their clients in defense of the constitution and in service of the court."

The critiques often lobbed against public defenders are based on the assumption that they agree or somehow sympathize with their clients and the crimes they are accused of.

“Regardless of what your client is facing, what criminal charges they're facing, it is your responsibility as a public defender to represent them effectively or else the system doesn't work,” Hoag said. “It's been an unfortunate trend that there's this conflation somehow that public defenders support criminal conduct or maybe adopt the views of their client and that's not at all what this is about.”

The right to representation is a core tenant of American democracy. The Sixth Amendment of the U.S. Constitution guarantees that the accused must be represented no matter what their crime.

“The argument that you're soft on crime, you're getting people off who are guilty anyway, but that type argument is really short-sighted because it really disregards the Fourth, Fifth and Sixth Amendments,” Cedric Powell, a law professor at the University of Louisville, said in a phone call. “If those amendments mean anything, then people are entitled to representation, and that entitlement is constitutionally based is not based upon guilt or innocence.”

Senators are using distorted versions of Jackson’s ruling in child pornography cases and her experience as a federal public defender as a tactic to portray her as soft on crime, but these accusations do not withstand scrutiny. Experts say that’s because the point is not to critique Jackson’s record but speak to conservative voters.

“These claims against Judge Jackson that she is somehow soft on crime is a dog whistle to the Republican base to somehow suggest that you're getting a justice that will let criminals and those who engage in child pornography off the hook,” Emmitt Riley, associate professor of political science and Africana studies at DePauw University, said in a phone call. “It speaks to their political base, and it's really not even rooted in any type of fact or reality.”

Democratic Senator Dick Durbin, chairman of the committee, started the second day of questioning by noting the motivations behind his Republican colleagues’ questions.

"For many of senators, yesterday was an opportunity to showcase talking points for the November election. For example, all Democrats are soft on crime, therefore, this nominee must be soft on crime. But you've made a mess of their stereotype,” Durbin said, speaking to Jackson directly. ”The endorsement of the Fraternal Order of Police and the International Association of Chiefs of Police just doesn't fit with their stereotype of a Harvard grad Black woman who is aspiring to the highest court in the land."

It is also important to put these accusations into the context of Jackson’s historic nomination. American legal experts say race is an implicit motivator behind the portrayal of Jackson — who would be the first Black woman on the court — as soft on crime.

“It has to do with this perception that somehow Black people, in general, are soft on crime,” Hoag said.

Some senators took it a step further and questioned Jackson on the 1619 Project and critical race theory, both of which seek to reexamine race within America. Nikole Hannah-Jones, a New York Times journalist, created the 1619 Project to reframe the consequences of slavery within the context of American’s history and explore the legacy of Black Americans. Critical race theory is an collegiate academic concept that looks at the intersection of race, society and law within American institutions.

Earlier this week, the Republican National Committee shared an image on Twitter with Jackson’s initials crossed out and replaced with “CRT.”

“What has been particularly shocking for me, although not surprising, is the degree to which Republicans have used this historic nomination to be engaged in white identity politics by highlighting issues that are important to their base such as critical race theory,” Riley said.

Nothing in Jackson’s judicial record has involved the 1619 Project or critical race theory, and the issues have not ever been presented before the Supreme Court.

“This is clearly racially inflected,” Frederick Lawrence, a distinguished lecturer at Georgetown Law, said in a phone call. “No other candidate has been asked questions like this. You have to ask yourself, if this candidate for the court had not been African American, would they be asking him or her questions about critical race theory that has nothing to do with her record, that's to do with what she's written, nothing to do with anything before the court? It’s just hard to avoid the obvious that this was racially motivated and racially inflected.”

Court watchers say that racism, whether coded or overt, has clouded Jackson’s nominationsince the beginning. President Joe Biden’s announcement that he would nominate a Black woman to the court sparked outcry from some that the nominee would not be the most qualified.

The treatment of Jackson is similar to how underrepresented groups have always been treated as they try to break barriers.

“We see this with historic firsts — particularly historic firsts of underrepresented groups — who often faced unprecedented opposition and hostility as they break these barriers,” Riley said.

For many attorneys, the attempt to glean a prediction from Jackson’s race alone of who she will be as a justice is frustrating.

“We are in politically charged times where race and racism are at the forefront of what is happening in American society, and so that's why it's a part of this process but it really should have no bearing on how she'll be as a justice,” Powell said.

Follow @KelseyReichmann

Categories / Civil Rights, Courts, National, Politics

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Jackson’s judicial record gives GOP little room for target practice

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