It’s not just Supreme Court nominee Judge Ketanji Brown Jackson who is being scrutinized. Senators are also being watched at this milestone moment in history considering the first Black woman for the high court.
Some senators are overcome with “joy,” as Cory Booker of New Jersey described the swell of emotion he felt over the potential to confirm a judge who would help the court look more like America.
Others, led by Sens. Josh Hawley and Ted Cruz, quiz the federal judge about her views on issues of race and crime, amplifying election year grievances and a backlash over changing culture.
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Jackson appeared for a third day before the Senate Judiciary Committee for grueling confirmation hearings that are providing a vivid portrait of the nation’s promise, but also its enduring racial challenges.
Chairman Sen. Dick Durbin, D-Ill, opened Wednesday lamenting that his panel had become “the testing ground for conspiracy theories and culture war theories.”
Nevertheless, he declared, “America is ready for the Supreme Court glass ceiling to finally shatter.”
Here are some takeaways from Day Three of the weeklong confirmation hearings.
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IN DEFENSE OF PUBLIC DEFENDERS
Jackson is the first federal public defender to be nominated to the Supreme Court, and she related her views about the importance of the work to ensure fair trials for all Americans.
Under questions from Democratic Sen. Jon Ossoff of Georgia, she explained that prior to the court’s 1963 ruling in Gideon v. Wainwright, people who were accused of crimes but couldn’t afford lawyers were not guaranteed the right to legal representation.
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“The protections of the Sixth Amendment, the right to trial, includes the right to appointed counsel, so that everybody who is accused of criminal behavior now has the right to an attorney,” she said.
“And that’s very important.”
Jackson’s efforts representing those accused of crimes, alongside the sentences she handed down as a federal judge, have provided a lengthy record of difficult cases for senators to review, in particular as Republicans have suggested she is soft on crime. Critics say she brings too much “empathy” to the cases.
Democrats counter that Jackson, who comes from a family with police officers, is backed by the Fraternal Order of Police, the large law enforcement organization.
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Jackson’s record is being scrutinized much the way the work of the first Black nominee to the court, Thurgood Marshall, the storied civil rights attorney, was probed for representing criminal defendants a half a century ago.
‘JUDGES CAN’T MAKE LAW’
Jackson has presented herself a judge who relies on method, not judicial philosophy, to remain neutral as she works to “stay in my lane” as a judge rather than a policy-making legislator.
She expanded on that view Wednesday reminding senators that the Constitution gives Congress the power to make laws and gives the courts “the judicial authority, the power to interpret the laws.”
Republicans have tried to portray Jackson as a potentially activist justice, a judge who has shown “empathy” for defendants and cases that they argue goes too far for a position on the high court, which is now tilted 6-3 toward conservatives.
“It’s important as consistent with my judicial methodology for each branch to operate within their own sphere,” she told the senators. “That means for me that judges can’t make law; judges shouldn’t be policy makers.”
Sen. Thom Tillis, R-N.C., said, “It seems as though you’re a very kind person, and that there’s at least a level of empathy that enters into your treatment of a defendant that some could view as maybe beyond what some of us would be comfortable with.”
REVIEWING THE RECORD
Senators launched into the third day of hearings relitigating the more than 12 hour session that delved Tuesday into issues of race and crime, particularly the emotional and disputed debate over the judge’s record sentencing child pornography offenders.
Sen. Lindsey Graham, R-S.C., picked up the arguments anew, arguing that Jackson as a judge should have imposed tougher sentences on child porn defendants rather than applying other deterrents.
“Put their a— in jail,” Graham said.
The day before, Hawley, Cruz and Sen. Marsha Blackburn of Tennessee had argued that Jackson has been too lenient in sentencing criminal defendants, despite fact checkers and other experts who have said the terms Jackson handed down are within norms of federal guidelines.
At one point, Cruz had veered into her views on critical race theory, pulled out the children’s book “Antiracist Baby” to quiz her about teaching the academic subject.
Jackson simply paused, and sighed, before answering the senators questions.
The top Republican Sen. Chuck Grassley said he sided with Cruz’s request for the White House to turn over paperwork related to the sentencing recommendations probation officers had made in several of the child pornography cases being scrutinized.
“No one on our side of the aisle had access to this information,” Grassley said.
Democrats have said the paperwork is now readily available for review.
Jackson is making history as the first Black woman nominated for the court, which once upheld racial segregation in America and for 233 years has been filled mainly with white men.
Democrats have the potential with their slim majority in the 50-50 Senate to confirm Jackson as President Joe Biden’s choice to replace retiring Justice Stephen Breyer even if all Republicans line up opposed. Her nomination is on track for a vote by Easter.
If confirmed, Jackson would also become the sixth female justice in the court’s history and the fourth among the nine members of the current court.