WASHINGTON ― Supreme Court nominee Ketanji Brown Jackson weathered a grueling day of questions during her Senate confirmation hearing Tuesday, for the first time facing hours of grilling from the nearly two dozen senators on the Judiciary Committee.
Jackson projected a measured, thoughtful demeanor throughout the all-day hearing, even as Republicans, at times, grasped at straws as they tried to find a line of attack that would stick. Although there were a few tense moments, day two of the hearing was mostly boring and without surprises.
Sen. Ted Cruz (R-Texas), a potential 2024 presidential contender, repeatedly pressed Jackson on her views on racism, children’s books and the academic discipline known as critical race theory. He specifically asked if she agrees with a children’s book called “Anti-Racist Baby,” by Ibrim X. Kendi, which is in the library at a private school in Washington, D.C., at which Jackson was a board member.
This book is one of the “most stunning” taught at Georgetown Day School, he said, holding up a copy of the book. He says it teaches children that babies are taught to be racist, not born racist, and that they are encouraged to admit if they have been racist and to talk about it.
“Do you agree … that babies are racist?” Cruz asked.
After a long pause, Jackson said she didn’t know of the book and, separately, added that critical race theory is “an academic theory taught in law schools,” not in elementary schools like Georgetown Day.
Cruz angrily continued to claim that the private school is teaching 4-year-olds about critical race theory ― an academic theory taught in graduate school about the ways in which race interacts with various social institutions ― and asking Jackson how she was OK with this.
Jackson said again that she hadn’t reviewed any of the children’s books he was talking about and that the subject of critical race theory does not come up in her work as a judge. She also, subtly, took a jab at Cruz, saying she was under the impression that his concerns about critical race theory were related to what was being taught in public schools.
“Georgetown Day School, just like the religious school that Justice [Amy Coney] Barrett was on the board of, is a private school,” Jackson said.
Cruz moved on to talking about child porn and sex offenders until his time was up.
Sen. Lindsey Graham (R-S.C.) seemed scattered with his questions. He complained about how conservative Supreme Court nominees had been treated in their confirmation hearings and about the Supreme Court nominee he wished that Biden had picked instead of Jackson. He fumed about progressive groups supporting Jackson. He asked Jackson if she thought 9/11 was an act of war (“yes”) and about her personal feelings on a legal argument she once made in a case involving Guantanamo Bay detainees.
None of this had much to do with Jackson’s actual record or her role as a potential justice.
At one point, Graham appeared to invoke questions Democratic senators had asked Amy Coney Barrett about her faith.
“On a scale of 1 to 10, how faithful would you say you are?” Graham asked mockingly, after asking what her faith was and how important it was to her. “Do you attend church regularly?”
Jackson said that, although faith played a big role in her life (she said she is “Protestant, non-denominational”), she was reluctant to talk about it in detail because “I want the public to have confidence in my ability to separate out my personal views.” Graham said he agreed that judges could separate their religious beliefs with the way they rule.
Graham concluded it was “problematic” that progressive groups which would “destroy the law as we know it” supported Jackson’s nomination. He was referring to judicial advocacy groups, such as Demand Justice, that Republicans have routinely brought up as a way to try to associate Jackson with the “radical left.”
For all his bluster, though, the South Carolina Republican has voted to confirm Jackson three times to other posts: her current seat on the U.S. Court of Appeals for the District of Columbia Circuit, a court considered second only to the U.S. Supreme Court; her previous seat on the U.S. District Court for the District of Columbia; and her previous seat on the U.S. Sentencing Commission.
Still, Graham isn’t likely to support Jackson for a seat on the Supreme Court. He said a job on the high court is different from a lower court because Supreme Court justices have more influence in changing the law.
One of the most tense exchanges of the day involved Sen. Josh Hawley (R-Mo.), another potential 2024 presidential candidate. The main charge, first launched by the conservative senator last week, is that Jackson went easy on sex offenders. It’s one that has been rebutted by several independent fact-checkers as “misleading” and a “distortion.”
“As a mother and a judge who has had to deal with these cases, I was thinking that nothing could be further from the truth,” Jackson said of Hawley’s accusations on Tuesday.
Jackson argued that existing sentencing guidelines involving child pornography, which Congress passed in 2003, are outdated because they were written before the ubiquity of the internet, leading to disparities in sentences handed down to offenders. She cited that, according to an opinion written by the late conservative Supreme Court Justice Antonin Scalia, judges must consider other factors in sentencing, such as a defendant’s age and background.
But Hawley didn’t seem satisfied, taking issue with one case of an 18-year-old defendant whom Jackson sentenced to three months in prison after a prosecutor recommended two years.
“I am questioning your discretion and judgment. I’m not questioning you as a person,” Hawley told Jackson.
“I’m having a hard time wrapping my head around it,” he added of the three-month sentence.
Democrats, not surprisingly, went easy on Jackson. They asked her about her views on the importance of certain constitutional rights and often used their time to talk about issues that they care about but that were only tangentially related to Jackson.
Sen. Sheldon Whitehouse (D-R.I.) spent most of his time talking about the vast network of secretive, well-funded, conservative “dark money” groups that have played a major behind-the-scenes role in seating five of the Supreme Court’s current justices. He specifically named The Federalist Society and Judicial Crisis Network.
All told, he said, these groups have spent at least $400 million to help select and confirm Justices John Roberts, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
“It shows considerable effort when somebody goes to that much trouble to create that many organizations to hide how much money they’ve spent to control the nominations process to the court,” Whitehouse said, comparing these group’s efforts to Republicans’ recent attacks on progressive groups, including Demand Justice, which supports Jackson.
“That operation is a very different thing than a group rooting for somebody,” he said. “I want to make sure that difference is clear.”
Jackson will appear again before the Senate Judiciary Committee on Wednesday for a second round of questions. She’s expected to be confirmed on a quick timeline, perhaps even with one or two GOP senators supporting her for the job.
This is a developing story. Please check back for updates.