The spectacle and substance, briefly explained.
Much of Supreme Court nominee Ketanji Brown Jackson’s confirmation hearing was extremely predictable.
Because Jackson is widely expected to be confirmed, the hearing was often less a review of her record than a platform for lawmakers to send a message. Still, there were some revealing moments.
After three days of testimony, here’s what we learned.
The messy realities of fairer sentencing
The experiences Jackson will bring to the Supreme Court are unique: She’ll be the first public defender to become a justice in more than three decades. She also served as vice chair on the federal Sentencing Commission.
But it was Jackson’s approach as a judge to sentencing that we heard about most in her confirmation hearing since Republicans’ most frequent line of attack had to do with her rulings on child pornography cases. Republicans seized on those rulings to accuse her of being too lenient and to paint her as soft on crime.
“Nothing could be further from the truth,” Jackson said on Tuesday in response to a question from Sen. Dick Durbin (D-IL). “I impose a significant sentence, and then all of the additional restraints that are available in the law. These people are looking at 20, 30, 40 years of supervision. They can’t use their computers in a normal way for decades. I am imposing all of those constraints because I understand how significant, how damaging, how horrible this crime is.”
The charge is an unfounded one and a distortion of Jackson’s record, Vox’s Ian Millhiser and observers at other outlets noted before the hearings. While Republicans have criticized Jackson for sentencing child pornography offenders below federal sentencing guidelines, a bipartisan group of judges, policymakers, and even prosecutors have stated that these guidelines are too harsh. When Jackson’s decisions are compared to that of a bipartisan slate of district judges, her record is typically in line with them.
“If and when we properly contextualize Judge Jackson’s sentencing record in federal child porn cases, it looks pretty mainstream,” wrote Doug Berman, a sentencing law expert at Ohio State University.
Jackson explained over and over again that Congress’s statute about child sexual abuse material cases directs judges to weigh different characteristics of the offense in addition to the federal sentencing guidelines and to impose a penalty “sufficient but not greater than necessary to promote the purposes of punishment.” Jackson also repeatedly explained that she followed the loose parameters for sentencing, parameters that lead to inconsistent sentences in these cases.
Jackson referenced her time as a public defender in the hearing as well, stressing how criminal defendants’ access to representation “makes our system the best in the world.”
Republican Senate Judiciary Committee members, including Ted Cruz (R-TX) and Mike Lee (R-UT), have supported sentencing reform efforts like the First Step Act, which enabled thousands of federal inmates to pursue shorter sentences. But they were clamoring for the harshest possible approach for people in child sexual abuse material cases during their turn at the mic, even in the face of persistent explanations from a woman who spent much of her career attempting to actually mete out fair punishments.
Jackson’s twist on originalism
Jackson, under questioning, walked through how she would weigh Supreme Court precedents including those on abortion rights. Her rhetoric was frequently in line with what her predecessors in these hearings said previously about settled precedents..
“I do agree with both Justice [Brett] Kavanaugh and Justice [Amy Coney] Barrett on this issue. Roe and Casey are the settled law of the Supreme Court concerning the right to terminate a woman’s pregnancy,” Jackson said, adding that she believed precedents were “entitled to respect.”
Of course, unsaid was that their perspectives on these precedents could lead to different interpretations and outcomes.
Dobbs vs. Jackson Women’s Health Organization is a pending case before the Supreme Court, for example. It centers on the constitutionality of a 2018 Mississippi law that bars most abortions after 15 weeks. The decision on this case could effectively weaken Roe so states have more power over determining the right to an abortion. While Kavanaugh and Jackson agree that Roe is a precedent, it’s likely that they’d rule differently on Dobbs.
Jackson explained, too, that overruling a past precedent would depend on several factors, including whether the ruling was “egregiously wrong,” whether new facts had come to light, and the extent to which people relied on the precedent.
Jackson repeatedly declined Republicans’ pressure to offer a judicial philosophy, as they attempted to illustrate she doesn’t subscribe to the “originalist” approach they prefer. Recent nominees Amy Coney Barrett and Brett Kavanaugh were enthusiastic originalists, meaning they say, they interpret the Constitution as it was written and as how the founders intended. Jackson instead said she had a three-part judicial methodology, which includes eliminating “preconceived notions,” weighing the inputs in a case, and applying the law to it.
“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 noted, stressing that she tried to operate from a “position of neutrality.”
While originalism is favored by Republicans, a more progressive framework is known as the “Living Constitution” approach, which means the interpretation of the document changes over time.
Jackson seemed to indicate that she didn’t align with this philosophy, either, offering testimony that emphasized viewpoints closer to originalism. “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,” she said in response to questions from Sen. Chuck Grassley (R-IA) on Tuesday. “Instead, the Supreme Court has made clear that when you’re interpreting the Constitution you’re looking at the text at the time of the founding.”
Jackson’s statements have heartened some on the right, though Slate’s Mark Joseph Stern notes that there is enough flexibility in the application of originalism for judges to arrive at more progressive rulings as well.
Republicans’ used their big political platform to focus on culture war issues
Some Republicans, like Ben Sasse (NE), Thom Tillis (NC), and Grassley (IA) were respectful — sometimes even genial — even as they pushed for tough answers and gave no indication they’ll actually support Jackson’s nomination.
More notable though, were the Republicans, including the ones with 2024 ambitions, who took advantage of all the media attention focused on the hearings for political messaging. Chiefly, they sought to tie Jackson’s record to culture wars, giving themselves fodder to rile up voters or prove their own conservative bonafides.
There was the focus on Jackson’s sentencing in child sexual about material cases as part of an effort to paint her — and Democrats — as soft on crime. Sometimes the message strayed far from Jackson herself. “I think it’s safe to say there’s a surge in crime, especially violent crime and murder,” Cotton said in the hearings. “Does the United States need more police or fewer police?”
As Vox’s Ian Millhiser explained, the attacks on perceived leniency toward child pornography are also reminiscent of conspiracy theories like QAnon that suggest that liberals are part of a ring of pedophiles.
Republicans also brought up other culture war issues, including critical race theory. Cruz attacked the curriculum at the school where Jackson serves on the board as promoting the theory.
“It doesn’t come up in my work as a judge. It’s never something that I’ve studied or relied on. And it wouldn’t be something that I would rely on if I were on the Supreme Court,” Jackson responded when asked about critical race theory. Jackson’s defense of Guantanamo Bay detainees, and the issue of trans athletes competing in college sports were also raised.
It’s not unexpected that a judicial nominee would face questions about hot-button cultural issues, but this may be the most visible moment in Congress all year. So what was most revealing were which issues Republicans chose to highlight — and the racist dog whistles some of them used in doing so.
How Jackson handled the scrutiny, and the historic moment
All nominees face a challenge in these hearings: They must gird for long, grinding days and senators with an agenda in which they will serve as a prop. Jackson faced the extra layer of pressure that comes with being a historic pick, as she stands to become the first Black woman ever to be a Supreme Court justice.
She was mostly unflappable, though glimmers of frustration were evident in the face of some of the more demeaning and obtuse lines of questioning.
“This is just a master class in how Black women have to be patient, have to be fully composed in responding to things that are meant for destruction,” Georgetown University women’s and gender studies professor Nadia Brown told the Los Angeles Times.
Despite the tendentious and misleading questions from Cruz, Jackson couldn’t possibly rage and cry the way now-Justice Kavanaugh did in his confirmation hearing without destroying her career. Even an eyebrow raise could be held against her. https://t.co/e7KO00V201
— Irin Carmon (@irin) March 22, 2022
I’m glad Jackson is, gracefully, showing a bit of her understandable frustration. She certainly does not have the privilege to behave as Kavanaugh did. But she should be allowed to be a human. Black women should not always be expected to endure disrespect with a smile.
— Kimberly Atkins Stohr (@KimberlyEAtkins) March 23, 2022
So far, there have been 115 Supreme Court justices, just five of whom have been women and two of whom have been Black men.
Throughout the hearing, Jackson spoke extensively about the importance of having a more diverse federal judiciary, noting how a Supreme Court that looks like America would help to build public trust.
“We have a diverse society in the United States … and when people see that the judicial branch is comprised of a variety of people who have taken the oath to protect the Constitution, it lends confidence that the rulings the Court is handing down are fair and just,” Jackson said. “I think it’s extremely meaningful. One of the things that having diverse members of the Court does is it provides the opportunity of having role models.”
Sen. Cory Booker (D-NJ) — in remarks that made Jackson tear up — also emphasized the discrimination Black women have had to endure in different fields, while stressing her achievements.
“Any one of us senators can yell as loud as we want that Venus can’t serve, that Beyoncé can’t sing, that astronaut Mae Jemison didn’t go that high,” Booker said. “As it says in the Bible, ‘let the work I’ve done speak for me.’ Well, you have spoken.”