Senate Judiciary Committee Concludes Judge Ketanji Brown Jackson's Supreme Court Confirmation Hearings

What’s the story?

• The Senate Judiciary Committee on Wednesday concluded the live question-and-answer portion of Judge Ketanji Brown Jackson’s confirmation hearings for her nomination to the Supreme Court. 
• Senators held two days of hearings to ask Jackson questions and discuss her record, Tuesday’s hearing lasted about 12 hours while Wednesday’s session lasted over 10 hours. The confirmation hearings concluded Thursday after a panel of legal experts testified for about four hours.
• Here are some of the key takeaways and flashpoints from the two days of question-and-answer hearings:

Judicial Philosophy

• Senators asked Judge Jackson about her judicial philosophy, particularly whether she believes the Constitution is a living document that should be interpreted on a contemporary basis or if she interprets the Constitution with its original meaning in mind.
• While Jackson may have disappointed some of the panel’s conservative senators by not fully embracing constitutional originalism, she acknowledged that originalism is the predominant judicial philosophy and declined to embrace the notion of a living Constitution.
• Jackson explained, "Unlike some judges who come to appellate work from academia and who have some overarching theory of the law, I approach cases from experience, from practice and consistent with my constitutional obligations."

Sentencing Standards for Criminals

• Jackson faced questions on both days related to sentences she meted out to convicted criminals ― including some who were convicted of child pornography offenses ― that were below the recommended sentencing guidelines. 
• Some Republicans on the committee, including Sens. Tom Cotton (R-AR), Ted Cruz (R-TX), Lindsey Graham (R-SC), and Josh Hawley (R-MO), argued that Jackson was too lenient in those sentences. Hawley asked Jackson whether she regretted a three-month sentence she levied on one child pornography offender that was below the sentencing guideline, and Jackson responded:

“What I regret is, in a hearing about my qualifications to be justice on the Supreme Court, we’ve spent a lot of time focusing on this small subset of my sentences.”

• The Wall Street Journal noted that the U.S. Sentencing Commission, which Jackson served on from 2013 through 2021, wrote in a 2012 report that the original sentencing guidelines for child pornography don’t account for the growth of the internet so the “current sentencing scheme results in overly severe guideline ranges for some offenders” because of the ease of owning and sharing large numbers of images. 
• Committee Republicans have requested more documents related to Jackson's sentencing decisions that they say committee Democrats and the Biden administration have withheld. They wrote in a letter that Ranking Member Chuck Grassley (R-IA) made part of the hearing record, "Whether or not you agree with a line of questions cannot be the basis to withhold documents." Chairman Dick Durbin (D-IL) said he was reluctant to turn over pre-sentence reports that may have private information about third parties: "I would not want it weighing on my conscience that we are turning over these pre-sentence reports to this committee for the first time in history."

Reversed Immigration Ruling

• Graham asked Jackson about a ruling she issued as a federal district court judge in which she temporarily blocked the Trump administration from expanding the expedited removal policy that lets the government deport unauthorized immigrants without going to immigration courts. The policy had previously been allowed only for unauthorized immigrants found near the border who had been in the U.S. less than two weeks, and the Trump administration expanded that to two years.
• Jackson granted a nationwide preliminary injunction blocking the rule after determining the agency acted arbitrarily without going through normal rulemaking processes that include a study of the proposed policy’s impact. 
• A three-judge panel from the D.C. Circuit Court of Appeals consisting of two judges appointed by Democrats and one by a Republican rejected her ruling and called her decision to grant a nationwide injunction a “particularly egregious” use of judicial power.
• Jackson explained, “Even very clear designations of authority to an agency may still be subject to Congress’s other directions regarding how to exercise the discretion.” Graham countered that she “completely wiped out” the plain language of the law and “reached a conclusion because you disagreed with the Trump administration” in what he termed “exhibit A of activism.”

Recusal in Racial College Admissions Case

• This fall the Supreme Court is expected to hear a pair of challenges to the use of race as a factor in college admissions at Harvard College and the University of North Carolina, Chapel Hill. Asian American applicants allege that the use of race by Harvard unfairly disadvantages them relative to students from other races due to quotas that boost black students.
• Jackson is an alumnus of Harvard College and Harvard Law School and has served on Harvard’s Board of Overseers since 2016, although her six-year term in that role ends this year. The Board of Overseers serves as a confidential advisory board for Harvard’s leaders on a variety of issues, including admissions policies.
• Sen. Ted Cruz (R-TX) asked Jackson whether she would recuse herself from that case given her ties to Harvard. Decisions about recusal are at the discretion of the justice with a potential conflict of interest, and Jackson responded that she will recuse herself from that case if she’s confirmed, saying, “That is my plan, senator.”
• Currently, the Supreme Court has consolidated both the Harvard and North Carolina cases due to their similarity. Justices may choose to split them into two cases, which would allow Jackson to participate in the North Carolina case, but if they decline to do so she will have to sit out the cases.

Abortion, Gender, & Religion

• Jackson was asked about her view of when life begins by Sen. John Kennedy (R-LA) and she replied:

“I don’t know. I have personal, religious, and otherwise beliefs that have nothing to do with the law in terms of when life begins… I have a religious view that I set aside when I am ruling on cases.”

• Kennedy followed up by asking when equal protection of a human person under the law begins, and Jackson again declined to respond.
• Sen. Marsha Blackburn (R-TN) also asked Jackson to define what a woman is in response to an ongoing controversy involving a transgender swimmer competing for women’s NCAA championships. Jackson declined to offer a response on the grounds that she isn’t a biologist and that transgender issues “are being hotly contested and could come to the court.”
• In an effort to emphasize what he believed was Democrats’ unfair treatment of federal judges nominated by Republicans, Graham asked Jackson about her religious beliefs and church attendance. Jackson responded that she is a protestant Christian but declined to say how frequently she attends church, noting “there’s no religious test in the Constitution under Article VI.”
• Graham responded, “There will be none with me,” and explained that he was frustrated with how Democrats treated Justice Amy Coney Barrett during her confirmations to the Supreme Court and the circuit court. He noted comments made by Sen. Dianne Feinstein (D-CA) at the 2017 circuit court hearing when she told Barrett “the dogma lives loudly within you and that’s of concern when you come to big issues that large numbers of people have fought for years in this country.” Graham explained: 

“It just appalls me that we can have such a system in America that if a conservative woman wants to stand out and say, ‘I love my family just as much as you love yours, and my faith means just as much to me as it does you,’ then all of a sudden, they’re some kind of weirdo.”

Expanding the Supreme Court, Cameras in the Court, & the 'Shadow Docket'

• Kennedy asked Jackson whether she has an opinion about Democrats’ push to expand the Supreme Court and flip control of it by appointing four liberal justices. Retiring Justice Stephen Breyer has been a vocal critic of those efforts, as was the late Justice Ruth Bader Ginsburg. 
• Jackson reportedly declined to criticize court-packing efforts during one-on-one meetings with senators and did so again during the hearing. She told Kennedy, “I have opinions about a lot of things, I don’t have an opinion that I think is appropriate to share.”
• Sen. Chuck Grassley (R-IA), a longtime advocate for having television cameras in the Supreme Court, asked Jackson how she feels about the issue. Jackson responded:

“I would want to discuss with the other justices their views and understand all the various potential issues related to cameras in the courtroom before I took a position on it.”

• Sen. Ben Sasse (R-NE) warned that the issue could lead to publicity stunts and uncivil behavior in the Supreme Court chambers: “Cameras change human behavior. We should recognize the jackassery we often see around here is people mugging for short-term camera opportunities.”
• Several Democratic senators expressed concern with the Supreme Court's use of the so-called "shadow docket" to decide cases on procedural grounds without a full hearing and in some cases without a written opinion explaining the ruling. Sen. Amy Klobuchar (D-MN) said, "The court's increasing practice of using the shadow dockets to decide cases that have grave consequences for our democracy, including the right to vote, and as you and many other nominees have set is fundamental, is incredibly troubling." Jackson didn't comment on recent shadow docket decisions but said that in general it's preferable for cases and related legal issues to "percolate" before a Supreme Court decision.

RELATED READING

• Watch & Comment: Senate Judiciary Committee Holds Judge Ketanji Brown Jackson's Supreme Court Confirmation Hearings (Day 3) (3/23/22)
• Watch & Comment: Senate Judiciary Committee Holds Judge Ketanji Brown Jackson's Supreme Court Confirmation Hearings (Day 2) (3/22/22)
• President Biden Nominates Judge Ketanji Brown Jackson to the Supreme Court (2/25/22)
• Supreme Court Justice Stephen Breyer Announces Retirement (1/27/22)
• Know a Nominee: Judge Ketanji Brown Jackson to the D.C. Circuit Court of Appeals (6/14/21)
• What is the 'Ginsburg Rule' for Supreme Court Confirmation Hearings? (10/13/20)

— Eric Revell

(Photo Credit: Supreme Court: photoverulam via Flickr / Creative Commons)