WASHINGTON ― Supreme Court nominee Ketanji Brown Jackson endured another full day of questions Wednesday from members of the Senate Judiciary Committee, including some gross and offensive lines of attack from Republicans.
Jackson is officially done with her testimony before the committee, and, barring extraordinary circumstances, she is expected to be confirmed as the first Black woman on the U.S. Supreme Court. Senate Democrats have the votes to confirm her without GOP support, though Jackson may pick up votes from a Republican or two.
But even if her confirmation is all but certain ― or perhaps because of that ― a number of Republicans spent Wednesday aggressively attacking her record in meting out punishments for people who have committed sex offenses.
“What I regret is that in a hearing about my qualifications to be a justice on the Supreme Court, you’ve spent a lot of time focusing on this small subset of my sentences,” Jackson, who has been a federal judge for nearly 10 years, said at one point, when Sen. Josh Hawley (R-Mo.) asked her if she regretted a three-month sentence she ordered during one case.
Often she wasn’t able to answer for her record at all, as Republican after Republican used their questioning time to opine on racism and LGBTQ rights or nitpick some of her past cases. Sen. Lindsey Graham (R-S.C.) repeatedly cut off Jackson as she tried to rebut his accusation that she was too lenient as a judge in cases involving child pornography. This claim, which some Republicans have seized on as one of their primary attacks, has been rebutted by several independent fact-checkers as “misleading” and a “distortion.”
During a tense exchange, when Graham posed a series of questions and then interrupted Jackson as she tried to answer, Jackson finally said, exasperated, “Can I explain why, sir?” But Graham continued talking over her to the tune of 11 minutes over his allotted time, which drew audible complaints from Democrats on the panel and even some attendees in the audience.
When she could talk, Jackson explained why some cases involving child porn offenders deserve more nuanced consideration because they could lead to disproportionate lengths of sentences.
“All I’m trying to explain is that our sentencing system ― the system that Congress has created, the system that the Sentencing Commission is the steward of ― is a rational one,” she said. “It’s a system that is designed to help judges do justice in these terrible circumstances.”
Graham responded, with performative anger, that she needed to give every child porn offender the most aggressive form of punishment possible.
“We’re trying to get people to stop this crap,” said the South Carolina Republican. “I want you to stop that. I want people to go to jail who do that.”
Sen. Dick Durbin (D-Ill.), the chair of the committee, noted that Jackson wasn’t an “outlier” in how she sentenced sex offenders, and he put part of the blame on Congress for not updating the sentencing guidelines to account for the rising availability of the internet, which has led to an increase in child porn.
“This is our fault?” an incredulous Graham asked before storming out of the hearing, declining to answer questions from reporters.
Sen. Ted Cruz (R-Texas) appeared to be following cues from Graham. He repeatedly talked over Jackson as he accused her of being too lenient in cases involving sex offenses. He got so aggressive and rude that Durbin jumped in to stop him, and then they started arguing.
“Senator, would you please let her respond?” Durbin said angrily.
“Not if she’s not going to answer my question,” Cruz responded.
Durbin replied, “I would at least give you an opportunity to speak.”
Eventually Jackson jumped in and said to Cruz, “Senator, I didn’t say I’m not going to answer. I said my answer ...”
Cruz interrupted her yet again, bringing up another child porn case that Jackson oversaw: “In this case, Chazin, why did you sentence to 28 months?”
Cruz eventually ran out of time but continued yelling and talking over Durbin as he tried to move on to the next senator on the panel, Sen. Chris Coons (D-Del.). Coons gave Jackson a chance to respond, finally, to the question that Cruz wouldn’t let her answer.
Every case is unique, she said, and as a judge, she weighs the full spectrum of factors when deciding punishments in child porn cases. That includes recommendations from the government, from the probate office, details about the defendant, the defendant’s record and evidence in the case.
Sen. Cory Booker (D-N.J.) said Republicans’ disrespectful treatment of Jackson was “not a surprise, given the history that we all know, but perhaps a little bit of a disappointment.” He noted the “challenges and indignities that are still faced” by Black people and credited Jackson’s “grit and grace” in the face of GOP senators’ attacks.
Booker then brought Jackson to tears speaking of the “joy” of this historic moment and what her nomination means to Black women in the U.S. “I know what it’s taken for you to sit in that seat,” he said.
Not every Republican harped on Jackson’s record dealing with sex offenders. Sen. Thom Tillis (R-N.C.), for one, said he was “sympathetic” to some of the concerns raised by his colleagues relating to sentencing but “not necessarily all” of them.
“You may have factors you would point to which would justify [your] decision” on sentencing defendants, Tillis said.
Sen. Mitt Romney (R-Utah), who is not a member of the committee, told The Washington Post that he’s more concerned about Jackson’s judicial philosophy than he is interested in grilling her specifically on her record of sentencing in sex offenses.
“It struck me that it was off course, meaning the attacks were off course that came from some,” Romney said Tuesday of his GOP colleagues. “And there is no ‘there’ there.”
The Utah Republican may be a potential GOP yes vote for Jackson’s confirmation. But he voted against her last year when the Senate confirmed her to her current seat on the U.S. Court of Appeals for the District of Columbia Circuit.
The only Republicans who voted to confirm Jackson last year were Sens. Susan Collins (Maine), Lisa Murkowski (Alaska) and Graham. It doesn’t seem likely that Graham will support Jackson this time, given his erratic behavior in the hearing. That leaves Collins and Murkowski as Jackson’s most likely supporters among the GOP.
All three have so far declined to weigh in on how they’ll vote.