THE TOP
Happy Tuesday morning.
The real Supreme Court confirmation hearings for Judge Ketanji Brown Jackson begin today.
Monday’s opening statements from senators on the Judiciary Committee and Jackson were just the first gambit from both sides. Today is when the actual drama starts — if there’s going to be any in Jackson’s bid to become the first Black woman on the high court.
Senators will get a chance to question Jackson for 30 minutes during the first round that starts today, plus another 20 minutes during the second round. This questioning will last for two days, or roughly 18 to 19 hours in total. Half of that will be by Democrats, who aren’t likely to push Jackson anywhere near as hard as their GOP counterparts.
This means Jackson has to withstand roughly nine to 10 hours of questioning by (potentially) hostile senators over the next two days. And the reward for getting through this ordeal successfully could be a lifetime appointment to the nation’s highest court.
It was pretty clear from Monday’s sessions where Republicans will go. They want to grill Jackson on her judicial philosophy, whether she will be an “activist judge” who will seek to make law from the bench, one not satisfied in interpreting laws as passed by Congress and approved by the president.
There was a lot of discussion Monday by Republicans on whether Jackson – a former public defender – was “soft on crime.” They’ll also explore her record while serving on the U.S. Sentencing Commission. Jackson’s representation of two Guantanamo Bay detainees was raised as a point of emphasis as well.
Yet most controversially, Sen. Josh Hawley (R-Mo.) said he wants to know whether Jackson has been too lenient in handing out prison sentences for defendants in seven child pornography cases. Hawley read the specific cases out to Jackson during Monday’s hearing. Democrats, the White House and Jackson’s supporters have pushed back very hard on this issue, accusing Hawley of cherry picking quotes and failing to note that the sentences were in line with recommendations from probation officials.
We’ll get into more detail on Hawley below but his claims have been labeled as “misleading” and “out of context” by multiple independent fact-checkers.
We spoke to several Judiciary Committee Republicans following Monday’s hearing and asked about their focus for today’s proceedings. Some Republicans declined to say what they’d ask Jackson, preferring to save that for the committee room. However, here’s some of what we heard:
Sen. Chuck Grassley of Iowa, the ranking Republican on Judiciary, said, “No one is questioning [Jackson’s] qualifications. We want to know how she looks at a judge’s job – whether she looks at it as a super legislator or whether she’s going to interpret the law.”
Sen. John Kennedy (R-La.) didn’t want to discuss his list of questions but, like Grassley, planned to focus on Jackson’s “philosophy as a judge” and her overall approach to serving on the bench.
“I’m not gonna ask the judge how she would rule on a particular case. I’m not gonna ask the judge to comment on past Supreme Court cases. I’m just gonna talk to her about the law. I’m gonna try to understand how she thinks, how she analyzes cases, how she views the Constitution, what powers judges have, what limitations they have, how the federal judiciary fits in the Madisonian system of separation-of-powers. I talked in my opening statement today about representative governments versus declarative government. I want to talk to her about that. I would like to talk to her about the legitimacy of the Supreme Court.”
Sen. Thom Tillis (R-N.C.) was more expansive on the particulars of his questions for Jackson:
“If time allows, I’m going to spend a little bit on intellectual property stuff, which won’t be an attention grabber but is something that’s very important to me. I’m also kind of curious on due process. I do have a couple of questions with respect to sentencing that involve law enforcement assaults and a handful of others, but it’ll be pretty focused.”
As we noted above, we had a somewhat lengthy discussion with Hawley over his decision to dive into sentences meted out by Jackson in child porn cases.
We pressed Hawley several times on whether he actually believes Jackson is too lenient on child pornographers. And while Hawley kept saying he “liked” Jackson, we noted it’s an unusual way to express that sentiment.
“I’m not going to put words into her mouth, and I want to be careful here not to cast aspersions on her personally because I like her, and I think she’s a good person. I want to be clear on that.
But she may [have] a philosophy of the law. To me, that’s what this is about – her record, and her philosophy. So I’m going to ask her tomorrow.”
More Hawley:
“This way, [Jackson] knows exactly what I’m going to ask. And we’ll have an informed conversation… This is a smart person. She will come, and she will have her notes and whatever else on these cases. And she’ll say, ‘Here’s why I did what I did, here’s my thinking,’ and that’ll be illuminating.”
Hawley insists that he isn’t doing it to raise his profile for a possible presidential run in 2024 or with conservatives nationally.
“I’m not going to run for president,” Hawley said. “I’m not a candidate in 2024. Hopefully for the Senate, if the people of Missouri will have me.”
We also asked Hawley about the intense criticism he’s facing from Democrats and the White House. Judiciary Committee Chair Dick Durbin – without naming Hawley specifically – said such charges “fly in the face of pledges my colleagues made that they would approach [Jackson’s] nomination with civility and respect.”
“It tells me that they, the White House and Democrats, are really worried about this issue,” Hawley countered. “You’ll notice that they wouldn’t actually talk about it on the committee.”
Democrats, meanwhile, don’t have a coordinated approach when it comes to questioning Jackson, according to Durbin. He told reporters that Democratic senators on the panel have met twice, but it wasn’t to plan a specific line of questioning among members:
“We sat down and talked as a Democratic Caucus in the committee twice. Once was about the state of discovery and the most recent one was people who gave us some opinions on what the public was looking for. …There are a lot of questions. I’ve got five or 10 and I’m sure each person does as well. You don’t want to plow the same ground. You like to have something so novel even the press notices.”
Durbin says he’s still holding out hope that the committee vote to confirm Jackson will be bipartisan, despite an evenly split panel with most, if not all, Republicans poised to oppose her confirmation.
“I think my challenge is a little bit more significant than some. [It’s] an evenly divided committee, this is no day at the beach. We have a lot of tie votes but we have many that aren’t. So I’m striving to get more and more votes that come out with a majority. I hope this one does but it’s still too early to say.”
