Sen. Lindsey Graham (R-S.C.) kicked off his allotted 30 minutes at Judge Ketanji Brown Jackson’s Supreme Court confirmation hearing on Tuesday with an incongruous line of questioning that gave him an opportunity to air grievances over Amy Coney Barrett’s hearing in late 2020.
“What faith are you, by the way?” Graham asked Jackson.
Jackson replied that she is a nondenominational Protestant.
Graham then asked: “Could you fairly judge a Catholic?”
As Jackson pointed to her record of judging all different types of people, Graham jumped in to explain that he believed the answer was yes.
“I’m just asking this question because ― how important is your faith to you?” he said.
Jackson replied that her faith is “very important.” But, she added, “as you know, there’s no religious test in the Constitution under Article 6, and it’s very important to set aside one’s personal views about things in the role of a judge.”
Graham tried once more. “On a scale from 1 to 10, how faithful would you say you are, in terms of religion?” he asked.
But he was again unsuccessful: Jackson said she was “reluctant” to discuss her personal religious views, because she preferred to project a neutral image.
Graham then changed tack, reading part of a comment made by Sen. Dianne Feinstein (D-Calif.) at a 2017 confirmation hearing for Barrett’s nomination to an appellate court. Feinstein had said to Barrett that “the dogma lives loudly within you,” referring to her membership in a tight-knit, ultraconservative Catholic sect called People of Praise, where Barrett held the title of “handmaid.” The comment came up again at her Supreme Court confirmation hearing. Barrett was treated “very, very poorly,” Graham opined.
Sen. Dick Durbin (D-Ill.), who chairs the Senate Judiciary Committee, told HuffPost that Graham’s fixation on Jackson’s faith was “a little awkward.”
“The Constitution, as she reminded us, expressly says that there be no religious litmus test, and she stuck with that,” Durbin said.
Some senators ― including Durbin himself ― brought up Barrett’s religious beliefs in 2020 because she’d referenced them in her past legal writing, Durbin said.
“You’re not supposed to voluntarily ask someone what their religious belief is, but once they’ve established that religious belief as having an impact on your public service, that’s where the Feinstein question and my question came from,” he said.
Graham went on to spend a significant amount of his time on Jackson’s work representing detainees held at Guantanamo Bay ― work she defended as fulfilling an essential part of the American justice system, because everyone is entitled to representation under the law, including accused terrorists. Lawyers who defended the detainees have faced criticism from some conservatives over the past two decades, and this week, some Republicans on the Senate Judiciary Committee have seemed keen to zero in on the subject.
At one point, Graham asked Jackson if she knew the recidivism rate for Guantanamo Bay detainees, and claimed it to be 31%. The hawkish senator made it clear that he opposes the movement to close the infamous prison, a site of alleged human rights abuses.
At its peak, more than 700 people were in custody at Guantanamo, and 39 people remain there. Some have languished for years without being charged with a crime.
Durbin corrected Graham on some of his claims after his time was up, saying the recidivism rate for Guantanamo detainees has only been 5% since 2009, which prompted a heated response from the South Carolina senator.
“As long as they’re dangerous, I hope they all die in jail if they’re going to go back and kill Americans,” Graham said, gesturing for emphasis.
“It won’t bother me one bit if 39 of them die in prison. That’s a better outcome than letting them go,” he said. “And if it costs $500 million to keep them in jail, keep them in jail, because they’re going to go back to the fight.”
Graham then abruptly got up and walked out of the chamber.
If confirmed to succeed Justice Stephen Breyer, Jackson would become the first Black woman to sit on the Supreme Court. But first she has to make it through the confirmation hearings, which began on Monday with opening remarks and continued Tuesday with questions. Members of the judiciary committee are each expected have an additional 20 minutes to question the nominee later in the week.
Igor Bobic contributed to this report.