Sen. Lindsey Graham (R-S.C.) pummeled Judge Ketanji Brown Jackson with misguided questions about her sentencing record in cases involving images of child sexual abuse during her Supreme Court confirmation hearing on Wednesday, but continually interrupted her before she could offer her perspective.
Graham concluded his interrogation by storming out of the room for the second day in a row.
His line of questioning allowed him to join the ranks of Republican senators accusing Jackson of having coddled people convicted of being child sexual predators over the course of her career as a judge and as a member of a federal sentencing commission.
Sens. Ted Cruz (R-Texas), Josh Hawley (R-Mo.) and Marsha Blackburn (R-Tenn.) all joined the pile-on the day before, devoting a disturbing amount of time to bad-faith discussions on cases involving child sexual abuse or images.
Graham did not appear to have a problem with Jackson in the past. He voted to confirm Jackson to federal judicial positions in 2013 and 2021.
Sen. Dick Durbin (D-Ill.), who chairs the Judiciary Committee, at times tried to intervene, giving Jackson a chance to explain the nuances of federal sentencing guidelines and how Congress could choose to update them.
Graham focused on Jackson’s time as a U.S. district judge in Washington, D.C., alleging that it was wrong to impose a sentence of less than the maximum allowed by law for any case involving child pornography charges.
Jackson’s sentencing practices, however, are far from unusual.
As she clearly and repeatedly explained to senators this week, federal sentencing guidelines encourage judges to weigh the circumstances of a case and give them various tools meant to deter future crimes. Jackson has forcefully made clear that she considers the nature of child abuse crimes to be “sickening and egregious,” as she stated on Tuesday.
At several points, Jackson attempted to address Graham’s questions about court-ordered restrictions on computer use, but was accused by the senator of being lenient on child sexual predators.
When Graham’s 20 minutes of questioning was up, Jackson attempted to squeeze in a response.
“I’d like to answer your points about my sentencing in child pornography cases,” she said. “The point of the guidelines is to assist judges in determining what punishment to provide in cases, and they are horrible cases, but the idea is that between the range of punishment that Congress has prescribed, judges are supposed to be providing proportional punishment based on what a person has done.”
“At the time that the guidelines were created for child pornography, this crime was primarily being committed by people who were literally mailing one, two, five, 10, 100 photos at a time,” she explained.
After a brief interruption by Graham, Jackson continued: “As a result, the commission determined in the guidelines that it was a substantial aggravating factor if the facts of the case demonstrated that someone had been distributing hundreds of images. Because what that meant was over ... a long period of time, they had collected one photo at a time, they had amassed it, they had potentially mailed one at a time, and that showed really aggravated, terrible conduct. I’m not saying, as a baseline, it’s all not terrible. It’s all terrible. But what we’re doing is differentiating among defendants.”
“So the guideline says, you know what, we’re going to treat a person who’s distributed 1,000 a lot worse because that shows that this person is really engaged in this really horrible behavior,” she said.
“In comes the internet,” Jackson went on, explaining that new technology made the number of images a person had in their possession much less relevant because they could be collected in just a few minutes.
After another interruption by Graham, who accused her of not considering child sexual crimes to be serious, Jackson responded with force.
“Senator, 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. It is a system that is designed to help judges do justice in these terrible circumstances by eliminating unwarranted disparities, by ensuring that the most serious defendants get the longest periods of time.”
“What we’re trying to do is be rational in our dealing with some of the most horrible kinds of behavior. This is what our justice system is about. It’s about judges making determinations in meting out penalties to people who have done terrible things,” she said.