Judge Ketanji Brown Jackson’s first full day of interrogation included explanations of her approach as a judge, discussions of abstract legal concepts that could be crucial in controversial Supreme Court cases, and her defense of a sentencing that Republicans have claimed was not sufficiently harsh on certain crimes. .
The Democrats gave Jackson ample opportunity to push back the GOP attacks while letting her discuss the background that will make her a unique addition to the Supreme Court.
The Republicans, who on Monday promised to take a high-pitched tone in the cases, nonetheless grilled Jackson at the issues echoed in their culture war announcements ahead of this year’s mid-term.
Here are the key takeaways from Tuesday’s 12-hour-plus session:
Faced with GOP skepticism for not adapting to a specific legal philosophy, Jackson provided new details about the way she approaches her job and the “method” she uses to decide a case.
“I am very aware that as a judge in our system I have limited power and I try in every case to stay in my lane,” she said.
The three-step process she described involved clearing her mind of all preconceived notions about the case, receiving the various inputs – the written communications, the case, the hearings – she will have to decide a case and embark on an interpretation of the law that sets the “limits” of her role as a judge.
She said she was trying to “find out what the words mean as they were intended by the people who wrote them.”
This description of her methodology was not enough to satisfy Republican questions about her legal philosophy, which refer to the type of framework a judge uses to analyze a case of constitutional interpretation. An originalist approach, favored by conservatives, seeks to interpret the Constitution in terms of how the writers would have understood the words at the time they were drafted. Some progressives have sought to map what has been called a “living constitution” approach, which seeks to interpret the general principles of the constitution in a way that is applicable to contemporary circumstances.
Even when answering Republican Senator Ben Sasse of Nebraska’s questions about the dueling methods, Jackson explicitly declined to align herself with one or the other, noting that constitutional interpretation did not come up every time in the cases she decided as a judge on the lower court.
Jackson finally had the chance on Tuesday to address what have been the most controversial allegations leveled against her, telling the prosecution committee that she is lenient with child porn offenders that “nothing could be further from the truth.”
“These are some of the most difficult cases a judge has to deal with,” Jackson said when she was first given the chance by presiding judge Dick Durbin to respond to the allegations made last week by the Missouri GOP senator. Josh Hawley.
Later in the hearing, she said she still has nightmares about the witness in one of the cases the Republicans are now investigating, adding, “These crimes are, are horrible. So I take them very seriously, just like I did all the crimes, but especially crimes against children. ”
Republicans have sat at zero, what they say is Jackson’s tendency to issue verdicts in these cases that came under the sentencing guidelines – a pattern that places her in the mainstream of judges. Less than a third of the convictions handed down in cases of non-production of child pornography fell within the 2019 guidelines.
When she was grilled by Texas Republican Senator Ted Cruz, Jackson noted that the guidelines are only a starting point for judges.
“Congress is the body that tells judges what to look at, and Congress has said a judge does not play a number game,” Jackson said.
“The judge looks at all these different factors and makes a decision in each case based on a number of different considerations,” she added. “And in all cases, I did my duty to hold the defendants accountable in light of the evidence and the information presented to me.”
The sharpest question line on this topic was from Hawley, who focused on a particular case where Jackson sentenced the perpetrator to three months in a case where the prosecutors sought 24 months and the guidelines instructed 97-121 months.
Jackson said she did in the cases what the judges did, “taking into account all the different aspects of a particular case and making a decision in accordance with my authority, my judgment and full understanding of the serious nature of the crime.”
Broad cultural war topics that Republicans hit the Democrats on prior to the midterm periods got into GOP issues for Jackson.
Cruz asked Jackson several questions about “critical race theory” – a concept she said “does not come up in my work.”
“It’s never something I’ve studied or trusted, and it would not be something I would trust if I were in the Supreme Court,” she said.
Cruz tried to link it to Jackson through a presentation she had made as vice president of the U.S. sentencing commission, in which Jackson said she listed it among a “wash list of various academic disciplines that I said relate to sentencing policy.” He also raised it in connection with children’s books taught at Georgetown Day School, where Jackson is on the board. Jackson said the board does not check the school’s curriculum.
Late. John Cornyn, a colleague from the Texas Republicans, spent a significant portion of his question period asking Jackson about the Supreme Court’s decision on same-sex marriage from 2015, and whether the opinion was based on a legal principle that “allows the court to replace for the elected representatives of the people. ”
Cornyn suggested that the case could be seen as: “We five members of the Supreme Court must decide what the law of the land should be, and anyone who disagrees with us will be branded a bigot or accused of discrimination, even if these, their beliefs happens to originate from sincerely held religious beliefs, as the definition of a, of a marriage between a man and a woman. ”
And a series of questions from Arkansas GOP Senator Tom Cotton leaned heavily on Jackson’s conviction to tackle crime, asking her questions about whether the United States needed more police officers, whether enough killers were jailed and convicted of drug crimes.
Republican Sen. John Kennedy of Louisiana, as part of a larger line of inquiry into how the courts enshrine rights not explicitly in the Constitution, asked if a judge could find out that there is a constitutional right for a “transgender woman to to compete in women’s sports. ”
Late. Marsha Blackburn, a Republican from Tennessee, also raised the issue of transgender athletes after asking Jackson to define the word woman. “The fact that you can not give me a clear answer about something as basic as what a woman is, underscores the dangers of the kind of progressive education we hear about.”
Like Sasse’s interest in her legal philosophy, other GOP senators examined Jackson’s approach to abstract legal ideas that sound academic but could be crucial to how she would resolve controversial cases.
Cornyn raised the concept of “unumerated rights” – meaning the rights that are not explicitly written in the text of the Constitution, but which the court has interpreted to be covered by the protection of the Constitution.
Utah Senator Mike Lee also focused some of his questions on the Ninth Amendment. Its language thinks of unspoken rights, and he asked Jackson how judges should proceed to weigh what rights could come from it.
The concept of stare decisis also appeared repeatedly, including in questions from Democratic Sen. Amy Klobuchar of Minnesota, who noted it in connection with abortion rights decisions. Stare decisis dictates that the Supreme Court consider several factors before deciding to set a precedent for limiting dramatic fluctuations in the law that undermine its stability.
“I think it plays a very important role as a doctrine that prevents changes from happening in court,” Jackson said. “It is very important to have stability in the law for the sake of the rule of law, so that people can order themselves and predict their lives based on what the Supreme Court has already said.”
In recent Supreme Court rulings that overturn precedent, the liberal minority has accused the Conservative majority of ignoring some of the principles of stare decisis to overturn precedents that conservatives do not like.
After several opening statements on Monday, emphasizing the unique background that Jackson – as the first black woman nominated to be a judge – would bring before the Supreme Court, on Tuesday gave the judge the opportunity to discuss that background in detail.
Part of the context of her parents’ decision to move from Miami to Washington before she was born was the civil rights legislation passed in the 1960s.
“My parents moved to Washington, DC, because this is where it all started for them in terms of gaining new freedoms,” Jackson said, discussing the values of “hard work” and “perseverance” she had learned from them. .
She said her grandparents, who did not have “very formal education”, were the “hardworking people I have ever known and who just got up every day, put one foot after the other and supported their families and made sure, that their children went to college even though they never had those opportunities. ”
She said she reflected on her grandparents in this historic moment.
“I stand on the shoulders of people from that generation,” she said.
This story has been updated with further developments on Tuesday.