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Ketanji Brown Jackson vows to ‘stay in lane’ on Supreme Court

As lawmakers questioned the nominee, Jackson asserted her commitment to neutrality on the bench and defended her history as a judge and public defender.

WASHINGTON (CN) — Lawmakers used a marathon session of the Senate Judiciary Committee on Tuesday to dig into the approach that Supreme Court nominee Ketanji Brown Jackson takes as a judge, as well as how she represented clients in the past as a public defender and private attorney.

Jackson, a sitting judge on the Court of Appeals for the D.C. Circuit, asserted she would achieve "neutrality" as a Supreme Court justice. Responding directly and for the first time to criticisms of her record, Jackson rejected Republican assertions that she is a judicial activist — the term used for judges who rule based on desired case outcomes.

Having served as both a trial and appellate judge, spending years on the U.S. District Court for the District of Columbia before she won confirmation to the appellate post last June, Jackson asserted "there is not a label" for her approach to cases.

"I am acutely aware that, as a judge in our system, I have limited power, and I am trying in every case to stay in my lane,” Jackson said.

As President Joe Biden's pick to fill Justice Stephen Breyer's spot on the nation's highest court, Jackson would be the first Black woman and first former public defender to serve as a Supreme Court Justice. Her confirmation hearing began Monday and will continue throughout the week.

Like all such hearings, Jackson's on Tuesday featured a mix of direct questions from senators aimed at learning more about her approach to judging, and political posturing by lawmakers eager for a soundbite.

Repeatedly, the 51-year-old talked about her commitments to the U.S. Constitution and to existing Supreme Court precedent while refusing to take the bait from senators searching for details on her political beliefs and legal perspective.

"I do not believe that there is a living constitution in the sense that it's changing and it's infused with my own policy perspective or the policy perspective of the day. Instead, the Supreme Court has made clear that when you were interpreting the constitution, you're looking at the text at the time of the founding, and what the meaning was as a constraint on my own authority," Jackson said at the start of the hearing.

When asked about whether she supports expanding the size of the Supreme Court or allowing TVs in the courtroom, Jackson declined to comment. She then went on to evade probes from Republican Senators John Cornyn of Texas and Lindsey Graham of South Carolina about her stance on Breyer's judicial philosophy and how much her Christian faith means to her.

Democrats have applauded Jackson's stellar resumé, from her Harvard University and Law School degrees to her three clerkships for federal judges, including Breyer, and the years she spent as a federal public defender and in private practice.

While her first day before the panel consisted of prewritten statements read aloud by each lawmaker, Tuesday's hourslong question-and-answer session gave Jackson the chance to directly address lawmakers' comments, including warped accusations raised in recent days by Senator Josh Hawley that she was overly lenient as a district court judge when handing down sentences in child-pornography cases.

"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. These are some of the most difficult cases that a judge has to deal with because we're talking about pictures of sex abuse of children," Jackson said of her thoughts when Hawley leveled the accusations against her.

Hawley had pointed to cases where Jackson sentenced defendants to timeframes below those suggested by the U.S. Sentencing Commission — a panel on which Jackson served for a period of time.

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One case Hawley drilled down on was a 2013 conviction of an 18-year-old for child pornography possession in which federal guidelines suggested a 97 month prison sentence, the prosecutor asked for two years and Jackson sentenced the defendant to three months.

"I am questioning your discretion, I am questioning your judgment. That's exactly what I'm doing," Hawley said.

Jackson said sentencing decisions involve many factors in addition to federal guidelines, however, including recommendations from the probation office that can differ from federal suggestions.

“What a judge has to do is determine how to sentence defendants proportionately consistent with the elements that the statutes include, with the requirements that Congress has set forward," Jackson said.

She said that, since the rise of the internet — which made illegal and abusive material more available — federal sentencing guidelines have created large disparities in sentences, leading judges to question strictly adhering to the guidelines for cases where people have possessed but not produced child pornography.

"It's not doing the work of differentiating who is a more serious offender in the way that it used to," Jackson said, when responding to an inquiry by Senator Dick Durbin, chairman of the committee, about Hawley and Cruz's accusations.

"So the commission has taken that into account and, perhaps even more importantly, courts are adjusting their sentences in order to account for the changing circumstances," Jackson continued. "But it says nothing about courts' view of the seriousness of this offense."

A 2021 report from the U.S. Sentencing Commission noted that only 30% of people convicted in 2019 of child-pornography offenses unrelated to production were sentenced in accordance with federal sentencing suggestions.

Jackson repeatedly pushed back against criticisms that she is soft on crime.

“As someone who  has had family members on patrol and in the line of fire, I care deeply about public safety,” she said.

Senator Tom Cotton, a Republican from Arkansas, pushed Jackson to comment on whether current sentencing guidelines for crimes such as rape and child pornography go far enough. 

Jackson emphasized that those questions are issues that need to be resolved by the legislative, not the judicial, branch.

“It's not that they're difficult questions, it's that they're not questions for me. I am not the Congress. I am not making policy around sentencing,” Jackson said.

Early on in the hearing, Graham, who voted to confirm three of Jackson's past appointments, expressed ire about Jackson's time representing Guantanamo Bay detainees.

This led to a lengthy spat between Graham and Durbin about the recidivism rate of Guantanamo detainees.

'I'm suggesting the system has failed miserably, and advocates to change the system, like she was advocating, would destroy our ability to protect this country. We're at war, we're not fighting a crime. This is not some passage-of-time event,'" Graham told Durbin during the hearing.

Jackson explained that she was a federal public defender in 2005, shortly after the Supreme Court had granted detainees the right to file habeas corpus petitions, and was appointed to represent several detainees in court.

When she moved into private practice in 2007, several firms were agreeing to take detainee cases pro bono to address the fallout of the Supreme Court decision, and one of the cases at her firm was a detainee whom she had represented back when she was a public defender. Jackson said her firm asked that she continue representing that client.

"I would just emphasize that that's the role of a criminal defense lawyer," Jackson said. "Criminal defense lawyers make arguments on behalf of their clients in defense of the constitution and in service of the court."

While Republican arguments attempted to paint Jackson as soft on crime, Democratic lawmakers emphasized that she is endorsed by the Fraternal Order of Police along with former national security officials and victim rights organizations.

Cruz attempted to debate Jackson about critical race theory, bringing up Jackson's role on the board of Georgetown Day School, a liberal private school in Washington, D.C., that Cruz claimed teaches critical race theory.

Jackson noted that the school plays a unique and crucial role in Washington history. It was created in 1945 to provide a racially integrated private school experience at a time when racial segregation was legally mandated in the district.

"Georgetown Day School is a private school that was created when three white families, Jewish families, got together with three Black families, and said that, despite the fact that the law requires us to separate, despite the fact that the law is set up to make sure that Black children are not treated the same as everyone else, we are going to form a private school so that our children can go to school together," Jackson said.

She said she was not sure whether the school taught critical race theory, and that it was not part of her job on the school's board or her role as a judge.

"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 as though they are less than, that they're victims, that they are oppressors. I don't believe in any of that," Jackson said.

As the hearing literally reached the eleventh hour and several lawmakers checked out for the night, Booker asked Jackson about her family, allowing the nominee to give insight into her personal life.

She told the story of her parents, who grew up during segregation and chose to raise their daughter in Washington, D.C., a place they believed held immense possibility.

"Because this is where it all started for them in terms of having new freedoms. And I was born here on that hope and dream. I was born here with an African name that my parents gave me to demonstrate their pride, their pride in work and their pride and hope in what I could be,” Jackson said.

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