What senators asked Ketanji Brown Jackson on the third day of U.S. Supreme Court hearings
Ketanji Brown Jackson, nominee to be U.S. Circuit Judge for the District of Columbia Circuit, testifies during her Senate Judiciary Committee confirmation hearing in Dirksen Senate Office Building on April 28, 2021 in Washington, DC. (Photo by Tom Williams-Pool/Getty Images)
WASHINGTON — Members of the U.S. Senate Judiciary Committee picked up Wednesday morning where they left off Tuesday evening in questioning Supreme Court nominee Judge Ketanji Brown Jackson about her judicial philosophy, sentencing practices and personal background.
Two senators, Democrat Jon Ossoff of Georgia and Republican Thom Tillis of North Carolina, who did not question Jackson on Tuesday were allowed 30 minutes for questions Wednesday, before all 22 members of the panel would have 20 more minutes for additional questions.
The 20-minute round was the last chance for senators to question Jackson. The panel will hear Thursday from the American Bar Association and other outside witnesses.
Ossoff opened his remarks with an acknowledgement of his fellow Georgia Democrat, Raphael Warnock, who is not a member of the Judiciary Committee but joined Wednesday’s hearing as a spectator.
Ossoff asked Jackson about her upbringing and her family’s values. Jackson confirmed that her brother, Ketajh Brown, was a police officer in Baltimore after he served in the U.S. Army. Two of Jackson’s uncles were also police officers and her parents, an attorney and an educator, were also involved in public service.
Ossoff also questioned Jackson about a line in an opinion she wrote that “presidents are not kings.” The 2019 opinion struck down former President Donald Trump’s claim that former White House Counsel Donald McGahn could not be compelled to testify in front of Congress.
Jackson said the founders of the United States broke the power of a monarch into three branches and that each branch — legislative, executive and judicial — was constrained in its power. Throughout the hearings, Jackson has declined to weigh in on questions she considered matters of policy better suited to the legislative or executive branches.
Ossoff said emerging technologies would complicate long-standing constitutional protections, including against unreasonable search and seizure.
“I want to urge you, should you be confirmed, to remain vigilant about how the emergence of new technologies — the way that they become ubiquitous in our lives, the way that virtual spaces are increasingly akin to physical spaces — will require the court to consider very complex questions and to seek technical advice,” he said.
He also said the court should be transparent about the “origin and funding source” of groups providing technical expertise.
Sen. Thom Tillis, a North Carolina Republican, inveighed against liberal groups that advocated for adding Supreme Court seats to balance the court’s ideological center. Such groups also pushed for eliminating the legislative filibuster in the Senate and “could destroy two institutions,” the court and the Senate, he said.
“That’s a bad, bad, bad idea,” he said about adding Supreme Court seats.
Democrats on the panel and the Biden administration were surely influenced by such advocacy groups, he added. He said he did not expect Jackson to weigh in on adding Supreme Court seats. Jackson said simply she understood arguments on both sides but would decline to offer her opinion.
Tillis asked Jackson about a ruling on the release of prisoners during the early days of the COVID-19 pandemic. Tillis at the time supported the release of nonviolent prisoners, he said, but an order from Jackson appeared to advocate for the release of all prisoners, he said.
Jackson responded that the order he quoted from showed the opposite — that it denied release for the prisoner who requested it, despite the public health concern.
“I go on to say in that very opinion, Congress has indicated that we have to take each case individually,” she said. “We have to look at the harm to the community that might be caused by the release of individual people. We can’t just release everybody.”
Tillis also told Jackson he opposed abortion and worried that Jackson did not view the free speech rights of anti-abortion activists to be equal to those advocating for abortion rights.
Tillis cited a brief Jackson wrote for a client in the late 1990s or early 2000s that argued a group of anti-abortion advocates was hostile to women seeking to enter an abortion clinic.
Tillis said the brief could be read to deny free speech rights for anti-abortion activists. Jackson said the brief was “viewpoint neutral” and advocated only a path be cleared for women to enter the clinic, no matter the views of those crowding them.
Before questioning began Wednesday, Iowa’s Chuck Grassley, who is the ranking Republican member on the committee, jumped into a dispute raised Tuesday night over the availability of records related to Jackson’s sentencing practices.
The White House provided data from the D.C. probation office and other records related to Jackson’s sentencing of convicts as a federal trial judge to Democrats before Republicans.
“No one on our side of the aisle had access to this information,” he said.
After Republicans complained Tuesday evening they’d only just received the records, committee Chairman Dick Durbin, D-Ill., said he’d received the records some time that day.
In the second round of questioning, Grassley asked, as several other senators have, about Jackson’s judicial philosophy.
Jackson said that, unlike nominees who come from academia who may have more theoretical views of law, hers was better described as a methodology developed through practice. Central to that methodology is a view of limited judicial authority, she said.
Jackson did say she had relied on her policy preference as a trial judge in a specific instance. Grassley asked if Jackson had ever declined to impose an enhanced sentence because she opposed the enhancement policy.
Sentencing enhancements are aggravating factors in a crime — a repeated offense or a drug offense in a school zone, for example — that judges can look at to impose a stricter sentence. Enhancements have also been reported to disproportionately apply to Black convicts.
Declining to impose an enhancement is in line with judicial power, as decided by Supreme Court case law, she said.
“Given the way in which the guidelines are operating, the disparities that are created in cases, I have at times identified various enhancements that I’ve disagreed with, as a policy matter, because the Supreme Court has said that that’s the authority of a sentencing judge in our system,” she said.
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