By Mary Clare Jalonick and Mark Sherman
Judge Ketanji Brown Jackson faced a barrage of Republican questioning Wednesday about her sentencing of criminal defendants, as her history-making bid to join the Supreme Court veered from lofty constitutional questions to attacks on her motivations as a judge.
She declared she would rule "without any agendas” as the high court's first Black female justice, rejecting Republican efforts to paint her as soft on crime in her decade on the federal bench. Democrats defended her and heralded the historic nature of her nomination.
"America is ready for the Supreme Court glass ceiling to shatter,” Sen. Dick Durbin, the chairman of the Senate Judiciary Committee, said in Jackson's second and last day answering questions at her confirmation hearings.
Though her approval seems all but sure — Democrats are aiming for a vote before Easter — Republicans keep trying to chip away at her record.
In more than 12 hours of testimony on Tuesday, and long into the day on Wednesday, GOP senators aggressively questioned her on the sentences she has handed down to child pornography offenders, her legal advocacy on behalf of terror suspects at Guantanamo Bay, her thoughts on critical race theory and even her religious views.
In response to questioning about a case over affirmative action at Harvard University, her alma mater where she now serves on the Board of Overseers, Jackson said she would recuse herself. “That's my plan,” she responded when Texas Sen. Ted Cruz asked her about it.
The court will in the fall take up challenges to the consideration of race in college admissions, in lawsuits filed by Asian American applicants to Harvard, a private institution, and the University of North Carolina, a state school. The court currently plans to hear the suits against the two schools together but could separate them and give Jackson a chance to take part in what will be one of next term’s biggest issues.
Tempers rose at Wednesday's hearing as the day wore on, with Durbin slamming down his gavel at one point when Cruz refused to yield after his time expired while he was grilling Jackson on the specifics of cases.
“You can bang it as long as you want,” Cruz snapped, shouting that he just wanted Jackson to answer his question.
“At some point you have to follow the rules,” Durbin shot back.
In another round of tense questioning, South Carolina Sen. Lindsey Graham interrogated Jackson on the punishment she believes appropriate for people convicted of child pornography. Like Cruz and others on the committee, Graham said she had been too lenient on those criminals. Graham frequently interrupted her as she tried to speak; at one point he said judges should simply “put their a— in jail!”
The focus on her sentencing was part of a larger effort by the committee's Republicans — several of whom are potential presidential candidates — to characterize Jackson's record, and her judicial philosophy, as too empathetic and soft on criminals who commit the worst offenses. It was also part of an emerging emphasis on crime in GOP midterm election campaigns.
North Carolina Sen. Thom Tillis said she seemed like “a very kind person” — but “there’s at least a level of empathy that enters into your treatment of a defendant that some could view as maybe beyond what some of us would be comfortable with, with respect to administering justice.”
The sustained focus on her record suggested that, contrary to Democratic hopes, Jackson’s confirmation vote in the full Senate is unlikely to garner much, if any, Republican support. Still, several Republicans acknowledged that she is likely to be on the court. Democrats can confirm her without any bipartisan support in the 50-50 Senate as Vice President Kamala Harris can cast the tiebreaking vote.
Jackson, backed by committee Democrats, forcefully defended her record and said that the Republicans were mischaracterizing her decisions. Asked if her rulings were endangering children, she told the committee on Tuesday: "Nothing could be further from the truth.”
She said she bases sentences on many factors, not just federal guidelines. Sentencing is not a “numbers game,” she said, noting that there are no mandatory sentences for sex offenders and that there has been significant debate on the subject.
Some of the cases have given her nightmares, she said, and were “among the worst that I have seen."
Jackson said that if she is confirmed, she will do what she has done as a federal judge, "which is to rule from a position of neutrality, to look carefully at the facts and the circumstances of every case without any agendas, without any attempt to push the law in one direction or the other.”
She reminded the committee that her brother and two uncles served as police officers, and that “crime and the effect on the community, and the need for law enforcement — those are not abstract concepts or political slogans to me.”
Defending her, Democratic Sen. Chris Coons of Delaware told Jackson that the Republican lines of questioning are “an attempt to distract from your broad support, your deep record, your outstanding intellectual and legal credentials.”
President Joe Biden chose Jackson in February, fulfilling a campaign pledge to nominate a Black woman to the Supreme Court for the first time in American history. She would take the seat of Justice Stephen Breyer, who announced in January that he would retire this summer after 28 years on the court.
Jackson would be the third Black justice, after Thurgood Marshall and Clarence Thomas, and the sixth woman. Her confirmation would maintain the current 6-3 conservative majority on the court.
Democrats have been full of praise for Jackson, noting that she would not only be the first Black woman but also the first public defender on the court, and the first with experience representing indigent criminal defendants since Marshall.
Jackson said that having a diverse judicial branch is important because it “bolsters public confidence in our system” and “lends confidence that the rulings that the court is handing down are fair and just."
She spoke of her parents often over the two days of questioning, and contrasted her own journey to their experiences growing up during the country's segregated past.
“One generation, we’ve gone from the reality of my parents’ upbringing to the reality of mine, and I do consider myself, having been born in 1970, to be the first generation to benefit from the civil rights movement," Jackson said.
Some of the most combative rounds of questioning during the hearings came from the potential GOP presidential candidates, including Cruz, Missouri Sen. Josh Hawley and Arkansas Sen. Tom Cotton. All hit on issues that are popular with the GOP base, including attacks on critical race theory, the idea that racism is systemic in the nation’s institutions. Jackson said the idea doesn't come up in her work as a judge, and it “wouldn’t be something I would rely on” if confirmed.
Asked about abortion, Jackson readily agreed with comments that conservative Justices Amy Coney Barrett and Brett Kavanaugh made about two landmark cases when they were up for confirmation. “Roe and Casey are the settled law of the Supreme Court concerning the right to terminate a woman’s pregnancy. They have established a framework that the court has reaffirmed,” Jackson said.
Even now, the court is weighing whether to overrule those cases that affirm a nationwide right to abortion.
Near the end of Tuesday's long hearing, Sen. John Kennedy, R-La., asked Jackson when life begins. She told him that she didn’t know, and added, without elaborating, “I have a religious view that I set aside when I am ruling on cases.”
Associated Press writers Jessica Gresko, Lisa Mascaro, Josh Boak, Colleen Long and Kevin Freking in Washington and Aaron Morrison in New York contributed to this report.
Updated on March 23, 2022, at 4:46 p.m. ET with background on affirmative action cases, Sen. Coons comment, committee tensions.