Five takeaways from Day One of Ketanji Brown Jackson’s Supreme Court hearings

Washington Examiner | by Kate Scanlon, Kaelan Deese | March 22, 2022

The first day of Supreme Court nominee Judge Ketanji Brown Jackson‘s Senate Judiciary Committee hearings saw primarily procedural introductions by lawmakers, concluding with the judge’s opening remarks.

Democrats on the committee lauded President Joe Biden’s nominee on Monday, while Republicans previewed some of their concerns about Jackson’s judicial record, a signal of GOP contention to the president’s nominee in the days ahead.

The following takeaways outline the tone lawmakers set on Monday, which precedes rounds of questioning the committee’s 11 Republicans and 11 Democrats will ask the judge on Tuesday and Wednesday, followed by rounds of questions to the American Bar Association and other witnesses on Thursday.

“Judicial Philosophy”

Ranking Republican committee member Sen. Chuck Grassley of Iowa used his opening statement to discuss expectations for Jackson’s hearing, emphasizing it would be a “respectful process” but clamping down on his party’s commitment to “ask tough questions about Judge Jackson’s judicial philosophy.”

“In any Supreme Court nomination, the most important thing we look for is the nominee’s view of the law, judicial philosophy, and view on the role of a judge. I’ll be looking to see whether Judge Jackson is committed to the Constitution as originally understood,” Grassley said Monday.

Jackson’s confirmation to the Supreme Court would not alter the present 6-3 conservative majority on the bench, though past committee hearings suggest Republicans still want to know more about her understanding of the Constitution.

Last year, Republican Sen. Ted Cruz questioned Jackson during her confirmation hearings to sit on the bench of the U.S. Court of Appeals for the District of Columbia. He asked the judge about her views on a “living Constitution,” or the idea that the Constitution can evolve and has relevant meaning beyond the original text.

In response to Cruz’s question of “whether we have a living Constitution,” Jackson said that in her previous role as a district judge, she had not undertaken any cases that “required” her to develop a view on “constitutional interpretation of text in a way that the Supreme Court has thought about the tools of interpretation.”

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History in the Making

Both Democrats and Republicans emphasized the historical magnitude of Jackson’s nomination to the high court, as she would become the first black woman to sit on the nine-member bench and would be the first justice with prior experience as a public defender if confirmed by the Senate.

While GOP lawmakers such as South Carolina Sen. Lindsey Graham recognized Biden’s philosophy that “the court should look like America,” he warned that he would not hold back from asking tough questions of the president’s nominee.

“‘We’re all racist if we ask hard questions.’ That’s not going to fly with us,” said Graham, who voted for Jackson after her circuit court nomination last year.

But other Republicans on the committee, such as North Carolina Sen. Thom Tillis, said “we should also recognize the historic nature of this event, the first African American female to be put forth for confirmation for the Supreme Court is quite extraordinary.”

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“Political Circus”

Republicans took several opportunities to condemn Democrats’ treatment of former President Donald Trump’s nominees, particularly Justice Brett Kavanaugh, at previous hearings, seeking to contrast their objections to Jackson’s nomination with what they described as Democrats’ character assassination attempts for prior nominees.

Cruz told Jackson the hearing would not be a comparable “political circus.” Grassley, who chaired the committee during previous hearings, said he was pleased that Sen. Dick Durbin, the current chairman, was able to get through his opening remarks uninterrupted.

Graham also claimed that character assassination ended the prospects for the nomination of his preferred judge, Michelle Childs, a district court judge from South Carolina.

“The attacks from the Left against Judge Childs were really pretty vicious, to be honest with you,” Graham said.

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Soft on Child Pornography Offenders?

In a series of tweets last week, Sen. Josh Hawley alleged that Jackson issued a series of sentences for child pornography offenders that were shorter than sentencing guidelines called for. Hawley reiterated those allegations in Monday’s hearing, saying he would ask Jackson for answers rather than “playing gotcha.” White House officials said Hawley cherry-picked his claims.

“I’m interested in her answer because I found in our time together that she was enormously thoughtful, enormously accomplished, and I suspect has a coherent view and explanation and a way of thinking about this that I look forward to hearing and I think she deserves the chance to talk about it,” Hawley said.

Durbin said Jackson would have time in hearings this week to respond to the allegation.

Andrew McCarthy, a senior fellow at National Review Institute, in a piece arguing he would oppose Jackson for other parts of her record, also called Hawley’s claim that the judge is soft on child pornography offenders “meritless to the point of demagoguery” in a piece cited by Durbin in his opening statement.

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“Dark Money”

Democrats on the Judiciary Committee dismissed claims that dark money groups led to Biden’s nomination of Jackson.

Republicans argued that Jackson’s support from the liberal group Demand Justice swayed Biden’s decision, but Democrats, including Durbin, said the judge was selected for her qualifications and record.

“To suggest that you’re here merely because an organization supports you ignores your qualifications and the broad range of support you bring to this,” Durbin said during his opening statement.

Grassley said that “there are a number of dark money groups on the Left that argue federal judges should make policy decisions based on judges’ own values.”

“I’ve talked about the troubling role of far-left dark money groups like Demand Justice have played in this administration’s judicial selection process,” Grassley said. “When the new Demand Justice isn’t creating the short list for President Biden to pick judicial nominees from, or putting out new litmus tests, they’re running ad campaigns attacking the independence of the judiciary.”

Demand Justice has been a subject of scrutiny for Republicans and is among liberal groups that have supported adding additional justices to the high court to counteract the number of Republican-appointed justices.

Sen. Sheldon Whitehouse, who vocally decried the influence of organizations such as the Federalist Society and the Judicial Crisis Network during confirmation hearings for Trump’s nominees, dismissed the influence of groups like Demand Justice on Biden’s selection.

Whitehouse also dismissed claims that dark money influenced Jackson’s nomination, arguing dark money was being spent in opposition to her confirmation.

“We’ve already seen dark money groups use dark money to run ads charging that dark money swayed this selection,” Whitehouse said. “We’re hearing that again today. It’s ironic when hundreds of millions of dollars in right-wing dark money built the current court majority.”

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