When the Senate Judiciary Committee opened the historic hearing on the first-ever black woman nominated for the U.S. Supreme Court [March 21], Republican senators, one after another, all promised respectful consideration of her qualifications. In turn, they appeared to promise to avoid any underhanded partisan attacks of the sort that they attributed to Democrats in blocking Robert Bork’s confirmation to the Supreme Court in 1987 and in trying to derail Justice Brett Kavanaugh’s nomination in 2018.
Despite relentless criticism from two of the committee’s most partisan Republican members, Missouri’s Josh Hawley and Texas’s Ted Cruz, Judge Ketanji Brown Jackson never flinched and showed “enormous patience” during three days at the witness table, as the National Law Journal’s Marcia Coyle remarked on the PBS NewsHour [March 23].
The committee’s chairman, Illinois’s Dick Durbin, similarly praised Jackson’s temperament as he prepared to wrap up the hearing on Thursday (March 24). “I believe she carried herself with grace and humility,” Durbin remarked.
The centerpiece of the Republicans’ line of attack, indeed virtually the only substantive criticism they could find, was Hawley’s compilation of Jackson’s below-guidelines sentences imposed on defendants in ten child pornography possession cases. The nation’s leading expert on federal sentencing policy, Ohio State University law professor Doug Berman, convincingly refuted the insinuation in a lengthy post on his “Sentencing Law and Policy” blog.
“To be truly fair and sound,” Berman wrote, “any review of Judge Jackson's CP sentencings must include proper context regarding the federal sentencing guidelines for CP which are widely recognized as dysfunctional and unduly severe.”
In fact, according to Berman’s study of the data, Jackson’s sentences were well within “the mainstream” of other federal judges in similar cases. The data from reports by the U.S. Sentencing Commission “document that Judge Jackson's record of imposing below-guideline CP sentences is quite mainstream because: (1) federal judges nationwide typically sentence below the CP guideline in roughly 2 out of 3 cases, and (2) federal judges nationwide, when deciding to go below the CP guideline, typically impose sentences around 54 months below the calculated guideline minimum.”
The Republican line of attack also fell flat with the veteran federal prosecutor, Andrew McCarthy, in an article he wrote for the conservative website National Review online. McCarthy began by stating his opposition to Jackson’s nomination, but went on to describe Hawley’s criticism as “disingenuous.” Hawley’s attack, McCarthy added, “is meritless to the point of demagoguery.”
Republican senators went beyond the cherry-picked compilation of cases to suggest that Jackson was generally “soft on crime” in her sentencing decisions in eight years as a federal district court judge in the District of Columbia (March 2013 – June 2021).
Members of the American Bar Association’s standing committee on the judiciary, appearing before the committee [March 24], testified that they heard no criticism of Jackson’s supposed bias toward defendants in their exhaustive investigation of her record in anonymous interviews with hundreds of lawyers familiar with her work.
“Notably, no judge, defense counsel, or prosecutor expressed any concern in this regard, and they uniformly rejected any accusations of bias,” D. Jean Veta, a senior counsel with the Washington-based law firm Covington & Burling and one of the ABA committee’s lead evaluators, told the senators.
Another of the ABA committee members, Joseph Drayton, a vice president of the National Bar Association, went further by explaining that the committee undertook its own review of Jackson’s sentencing decisions and found no evidence of bias. “We looked the record and how she came out and it didn’t appear as though she favored the prosecutor nor the defense in such cases,” Drayton said.
Despite the convincing refutations, Republicans kept up the line of attack over the weekend [March 26] by recirculating a tweet from no less a legal expert than Donald Trump Jr. “Democrats really doing their best to secure the paedophile [sic] vote for future elections this week,” junior tweeted.
The child pornography line of attack was one of several cynical tactics that Republicans used to score points with their political base rather than to examine Jackson’s qualifications fairly and thoughtfully. Tennessee’s Marsha Blackburn seized on Jackson’s work as federal public defender in representing Guantanamo detainees to suggest that Jackson worked to release “terrorists” from the U.S. prison camp.
Jackson explained, patiently, that she was assigned as federal public defender to represent one of the Guantanamo detainees and continued her representation after his case moved to a private law firm. Blackburn and other Republicans studiously ignored the legal profession’s ethical obligation to provide representation in the U.S. judicial system for anyone accused of criminal conduct. That tradition extends as far back as John Adams’ representation of the British soldiers accused in the so-called Boston massacre.
Cruz also seized on another of the GOP’s favorite issues: critical race theory, by trying to link Jackson, who sits on the board of the private Georgetown Day School, to one of the antiracist titles found in the school’s library. When eventually pressed for a direct answer about her view of CRT, Jackson had a complete answer. “It wouldn't be something that I would rely on if on the Supreme Court,” she stated.
Through three long days at the witness table, Jackson insisted time and time again that she had no ideological agenda and approached cases with detachment and neutrality. Her assurances failed, however, to satisfy the Senate’s Republican leader, Kentucky’s Mitch McConnell, who went to the Senate floor on Friday (March 25) to declare, “I cannot and will not support Judge Jackson for a lifetime appointment to our highest Court.” McConnell’s chief complaint appeared to be Jackson’s refusal to oppose increasing the number of justices on the Court, an issue for Congress to decide, not the Court.
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