A day after Republican senators pledged not to make personal attacks on Supreme Court nominee Ketanji Brown Jackson, several of them sparked a storm of misleading — and often offensive — attacks against her.
On Monday, the first day of Jackson’s hearing, several Republicans complained about the way Judge Brett Kavanaugh was treated prior to his confirmation after Kavanaugh was credibly accused of sexually assaulting a woman while in high school.
Multiple Republican senators pledged not to carry out similar “personal attacks” on Jackson. “No Republican senator will unleash an attack on your character when the hearing is nearly over,” promised Senator Lindsey Graham (R-SC) Jackson.
It’s not hard to guess what happened next. Tuesday, the first day of the hearing where senators from the Judiciary Committee could actually ask questions to Judge Jackson, included allegations by five Republican senators that Jackson is gentle with child pornography violators.
Before those deceptive attacks really took off, Graham stormed out of the hearing after attacking Jackson for providing legal advice to Guantanamo Bay inmates — suggesting that in doing so, Jackson was endangering national security. Two other Republican senators attacked the high school one of Jackson’s daughters attends.
sen. Ted Cruz (R-TX) spent much of his Question Time on Tuesday criticizing Georgetown Day School – Jackson is a member of the school’s board of trustees and she told Cruz she was attracted to the school because it was founded to provide a racially integrated education at a time when public schools in Washington, DC were segregated.
Cruz attacked the school because, he said, it… learn books he finds objectionable by Boston University historian and National Book Award-winning author Ibram X. Kendi. Cruz also accused Jackson of being a proponent of critical race theory, an academic framework for examining how racism is embedded in U.S. laws and institutions. He did so, though Jackson said critical race theory “has never been something I’ve studied or relied on” as a judge.
The Republican Party tweeted a similar attack on Jackson shortly before Cruz brought up the critical race theory at the hearing.
The most incendiary – and sadly the most predictable – accusation against Jackson was that she spent her entire career trying to protect sexual predators, especially child pornography. Senator Josh Hawley previewed this attack on Twitter last week, along with at least four other Senators, Cruz and Sens. Mike Lee (R-UT), Marsha Blackburn (R-TX) and Tom Cotton (R-AR), released versions of them on Monday or Tuesday. The broad outlines of this accusation are false, and the details are based on a false reading of federal criminal policy.
Hawley’s dishonest attack on Jackson, briefly explained
The focal point of Hawley’s attack is that in seven cases involving child pornography offenders, Jackson sentenced those offenders to fewer prison terms than federal sentencing guidelines recommended. This claim is more or less truthful—Jackson has indeed sentenced these offenders to lesser prison terms than recommended by the guidelines—but this is normal practice within the federal judiciary.
The Federal Sentencing Guidelines are an advisory manual that recommends federal judges a range of sanctions for various offenses. But the consensus among judges and sentencing policymakers is that these guidelines recommend penalties that are too harsh for “non-production” of child pornography crimes — that is, crimes where the offender views or distributes child sexual abuse material, but it does not produce.
According to a 2021 report from the US Sentencing Commission, “the majority (59.0%) of non-production child pornography offenders were granted a derogation under the guideline.” When judges deviate downwards from the guidelines, they typically impose sentences that: more than 50 months lower than the minimum penalty recommended by the guidelines. In a majority of child pornography cases heard by Judge Jackson, the prosecutor recommended a sentence under the guidelines†
It is also worth noting that the guidelines are a blunt instrument that takes only limited account of the specific circumstances of an individual offender’s actions. Before a criminal suspect is convicted, probation officers recommend a sentence tailored to their specific circumstances. And Jackson spoke sentences that… at or above the advice of the probation office in five of the seven cases identified by Hawley.
Numerous independent fact-checkers have investigated this attack on Jackson and determined that it is fake. The New York Times said: Republicans ‘distort’ Jackson’s record† The Associated Press said Republicans “twist the court record of Ketanji Brown Jackson† ABC News warned against “a flurry of misleading accusations by Republican Senator Josh Hawley† Even the conservative National Review described the allegations against Jackson as a “greasing” that “seems undeserved to the point of demagoguery†
Cruz and Hawley paid particular attention to one case: that of an 18-year-old Wesley Hawkins. Hawkins was still in high school when he committed his crime, which included sharing images and videos of child abuse online and with an undercover detective. A psychological evaluation of Hawkins determined that “there is” no indication that he is sexually interested in prepubescent children‘, and that ‘his interest in watching teens engage in gay activity was a way for him to explore his curiosity about gay activity and connect with his emotional peers.’
Although the guidelines recommended a minimum sentence of 97 months in prison for Hawkins, even the prosecution considered this too harsh. Prosecutors recommended two years in prison for Hawkins, and Jackson sentenced him to three months in prison plus an additional 73 months of supervised release.
As Jackson explained at the hearing, all child pornography offenses are “appalling and blatant” because just looking at such images helps create a market for content that can only be produced by abusing a child. But federal law requires judges to pronounce sentences that “sufficient, but not more than necessary‘ to punish a particular offender. And in the case of Hawkins, the prosecution, the defense, probation officers and ultimately Jackson all agreed that the recommended sentences in the guidelines were far too high.
While these allegations are unlikely to derail Jackson’s confirmation — when pivotal Senator Joe Manchin (D-WV) was asked Monday about Hawley’s assault on the judge, Manchin responded by Doubting Hawley’s Credibility – the stakes here are very high.
For starters, at least according to poll data, a just amazing percentage of Republicans believe or believed in conspiracy theories tying top Democrats to child sex trafficking — as many as half of all Donald Trump supporters, according to a 2020 poll last year, 15 percent of Americans said: they believed that satan-worshipping pedophiles ran the country.
Perhaps progressives or media outlets don’t see the QAnon signal, or assume that no one is buying it.
That’s a mistake.
About half of Republicans believe Democratic leaders are engaged in child sex trafficking! That’s a huge constituency! 2/ https://t.co/Yd1fNp47AZ pic.twitter.com/yXmtYM5BbS
— Don Moynihan (@donmoyn) March 20, 2022
The false belief that top Democrats are collaborating with child molesters is at the heart of conspiracy theories such as: QAnon or Pizza Gate. These conspiracy theories have led to violence in the past. For example, in 2016, a man with an assault rifle opened fire at a D.C. pizza parlor for falsely believing that Hillary Clinton and her former campaign chairman John Podesta were running a child sex abuse ring in the basement of the restaurant.
If Republicans succeed in derailing Jackson’s nomination with these kinds of accusations, that will teach the GOP that these kinds of accusations work. It will teach them that the apparently quite large minority of Americans who believe in ridiculous conspiracy theories about Democrats and sex offenders are a powerful political force that can be tapped.
But even if they fail, Republicans are taking advantage of the ugliest ideas that exist in American society. They spread accusations based on distorted versions of one’s actions. And they do this in hopes of derailing the appointment of a judge with a completely mainstream record.
If this works, it will probably get a lot uglier very soon.