Monday, May 16, 2022

What We Actually Learned From Ketanji Brown Jackson’s Confirmation Hearing

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Shreya Christina
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Much of the hearing of Supreme Court nominee Ketanji Brown Jackson was extremely predictable.

Because Jackson is widely expected to be confirmed, the hearing was often less of an assessment of her record than a platform for lawmakers to message. Still, there were some revealing moments.

After three days of witnessing, here’s what we learned.

The messy reality of fairer sentencing

The experiences Jackson will bring to the Supreme Court are unique: She will be the first public defender to become a judge in more than three decades. She also served as Vice Chair of the Federal Sentencing Commission.

But it was Jackson’s approach to sentencing that we heard about the most during her hearing, as the Republicans’ most common line of attack had to do with her rulings on child pornography cases. Republicans used those statements to accuse her of being too lenient and portray her as soft on crime.

“Nothing could be further from the truth,” Jackson said Tuesday in response to a question from D-IL Senator Dick Durbin. “I will impose a hefty penalty, and then all the extra restrictions that the law offers. These people are looking at 20, 30, 40 years of surveillance. They cannot use their computers normally for decades. I impose all those restrictions because I understand how important, how harmful, how terrible this crime is.”

The charges are baseless and a distortion of Jackson’s record, cafemadrid’ Ian Millhiser and observers at other outlets noted before the hearings. While Republicans have criticized Jackson for convicting child pornography offenders under federal punishment guidelines, a bipartisan group of judges, policymakers and even prosecutors have argued that these guidelines are too strict. When Jackson’s decisions are compared to those of a bipartisan slate of district judges, her track record usually aligns with them.

“If and when we properly contextualize Judge Jackson’s criminal record in federal child pornography cases, it looks pretty mainstream,” Doug Berman wrote, an expert on criminal law at Ohio State University.

Jackson explained time and again that Congress’ statute on child pornography instructs judges, in addition to federal criminal offense guidelines, to weigh various features of the offense and impose a penalty that is “sufficient but not greater than necessary.” to further the punishment goals”. Jackson also repeatedly explained that she followed the loose sentencing parameters, parameters that lead to inconsistent sentences in these cases.

Jackson also referred to her time as a public defender at the hearing, emphasizing how criminal defendants’ access to representation “makes our system the best in the world.”

Members of the Republican Senate Judiciary Committee, including Ted Cruz (R-TX) and Mike Lee (R-UT), have made efforts to reform sentencing, such as the First Step Act, which allowed shorter sentences for thousands of federal inmates. But they clamored for the loudest possible approach to those in child pornography cases during their turn at the microphone, even despite persistent statements from a woman who spent much of her career trying to actually hand out fair sentences.

Jackson’s twist on originality

Under questioning, Jackson went through how she would weigh Supreme Court precedents, including those on abortion rights. Her rhetoric often echoed what her predecessors in these hearings previously said about established precedents.

“I agree with both Justice [Brett] Kavanaugh and Justice [Amy Coney] Barrett on this subject. roe and Casey are the Supreme Court’s standing law regarding the right to terminate a woman’s pregnancy,” Jackson said, adding that she believed precedents “were entitled to respect.”

Of course, it was not said that their perspectives on these precedents could lead to different interpretations and outcomes.

Dobbs vs. Jackson Women’s Health Organization is, for example, a pending case at the Supreme Court. It discusses the constitutionality of a 2018 Mississippi law that bans most abortions after 15 weeks. The decision in this case could effectively weaken roe so states have more power over determining the right to abortion. While Kavanaugh and Jackson agree that roe set a precedent, it is likely that they would decide differently about dobbs.

Jackson also explained that setting aside a past precedent would depend on several factors, including whether the statement was “abnormally wrong,” whether new facts had come to light, and reliance on the statements.

Jackson repeatedly declined pressure from Republicans to offer a legal philosophy, as they tried to illustrate that it does not subscribe to the “original” approach they prefer. Recent nominees Amy Comey Barrett and Brett Kavanaugh have been enthusiastic originalists, meaning they say they interpret the Constitution as written and as its founders intended. Jackson instead said she had a three-part legal methodology, which included eliminating “bias”, weighing input into a case, and applying the law.

“I am well aware that as a judge in our system I have limited power and I try to stay in my job in any case,” Jackson noted, emphasizing that she was trying to operate from a “neutral position”.

While originality is preferred by Republicans, a more progressive framework is known as: the “Living Constitution” approachmeaning the interpretation of the document changes over time

Jackson seemed to indicate that she was also inconsistent with this philosophy, giving testimonials that emphasized views closer to originality. “I don’t believe there is a living constitution in the sense that it changes and is imbued with my own policy perspective or the policy perspective of the day,” she said in response to questions from Senator Chuck Grassley (R-IA) on Tuesday. “Instead, the Supreme Court has made it clear that when you interpret the Constitution, you are looking at the text at the time of its creation.”

However, Jackson’s statements have encouraged some on the right Slate’s Mark Joseph Stern notes that there is sufficient flexibility in the application of originality so that judges can also arrive at more progressive decisions.

Republicans used their large political platform to focus on issues of cultural wars

Some Republicans, such as Ben Sasse (NE), Thom Tillis (NC), and Grassley (IA) were respectful—sometimes genius—even when they insisted on difficult answers and gave no indication that they would actually support Jackson’s nomination.

More striking, however, were the Republicans, including those with 2024 ambitions, which benefited from all the media attention focused on the political reporting hearings. In particular, they tried to link Jackson’s record to culture wars, giving themselves fodder to excite voters or prove their own conservative bona fides.

There was focus on Jackson’s conviction in child pornography cases as part of an effort to portray her — and the Democrats — as “soft on crime.” said. “Does the United States Need More or Less Police?”

As cafemadrid’s Ian Millhiser explained, the alleged leniency attacks on child porn were also reminiscent of conspiracy theories such as QANon, which suggest liberals are part of a gang of pedophiles.

But they also raised issues, including critical race theory — Cruz attacked the curriculum at the school Jackson sits on the board to promote the theory. “It is not an issue in my work as a judge. It’s never something I’ve studied or relied on. And it wouldn’t be something I would rely on if I was on the Supreme Court,” Jackson replied when asked about the critical race theory. Jackson’s defense of Guantanamo Bay inmates and the issue of transathletes participating in college sports were also raised.

It’s not unexpected for a judicial candidate to be faced with questions about hot-button cultural issues. What’s revealing here is that, in what is probably the most visible moment Congress will have all year, Republicans chose to emphasize and the racist dog whistles that some used

How Jackson coped with the control and the historic moment

All the nominees face a challenge in these hearings: They must girdle long, exhausting days and gird senators with an agenda in which they will serve as a prop. Jackson faced the added pressure that comes with being a historic first as she will become the only black woman to ever become a Supreme Court judge.

She was imperturbable most of the time, though there was a glimmer of frustration in the face of some of the more humiliating and stupid questions.

“This is just a masterclass in how black women should be patient, complete in responding to things meant for destruction,” Professor Nadia Brown, a professor of women’s and gender studies at Georgetown University told the Los Angeles Times.

So far there have been 115 Supreme Court justices, of whom only five are women and two are black men.

During the hearing, Jackson spoke at length about the importance of a more diverse federal judiciary, noting how a Supreme Court resembling America would help build public trust.

“We have a diverse society in the United States…and when people see that the judiciary is made up of a variety of people who have taken oaths to protect the Constitution, it gives confidence that the court’s rulings are fair and just, ‘ said Jackson, ‘I think it makes extra sense. One of the things that having diverse members of the court does is it gives the opportunity to have role models.”

sen. Cory Booker (D-NJ), in comments that made Jackson cry, also highlighted the discrimination black women have endured in various fields, while highlighting her achievements.

“All of us senators can scream as loud as we want that Venus can’t serve, that Beyonce can’t sing, that astronaut Mae Jamison didn’t go so high,” Booker said. “As it says in the Bible, ‘Let the work that I have done speak for me’. Well, you’ve spoken.”

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