March 22, 2022
Ketanji Brown Jackson said she has not studied critical race theory but does not believe it is taught in schools, during a rapid-fire round of questioning from Sen. Ted Cruz, who pointed out that books like 'Antiracist Baby' are taught in the school where the judge sits on the board.
Cruz, R-Texas, brought out a set of props to hound the Supreme Court nominee on the hot-button culture war matter
Asked by Cruz to define the concept, Jackson underscored that critical race theory (CRT) was an 'academic theory' that she had never used in the courtroom
Cruz then brought up a list of required reading on critical race theory at Georgetown Day School, where Jackson sits on the board
Jackson arrived at the Capitol Tuesday for the second day of her confirmation hearings before the senate Judiciary Committee
'It doesn't come up in my work as a judge. It's never something that I've studied or relied on, and it wouldn't be something that I would rely on'
She passionately defended her record in sentencing child porn offenders
Said she was limited by sentencing guidelines by statutes and Congress
Also would not weigh in on whether she would support court packing
'I am not importing my personal views or policy preferences,' she ensured
Jackson made history Monday by appearing before the panel as the first black woman nominated to the Supreme Court
Cruz, R-Texas, brought out a set of props to hound the Supreme Court nominee on the hot-button culture war matter.
Asked by Cruz to define the concept, Jackson underscored that critical race theory (CRT) was an 'academic theory' that she had never used in the courtroom.
'Critical race theory, is it is an academic theory that is about the ways in which race interacts with various institutions. It doesn't come up in my work as a judge. It's never something that I've studied or relied on, and it wouldn't be something that I would rely on if I was on the Supreme Court.'
Cruz then quoted a speech where Jackson said her work as a judge was 'just plain interesting because it melds together myriad types of law, criminal law and of course, constitutional law, critical race theory.'
Jackson said that her address was about sentencing policy during her time on the federal sentencing commission, not about her work sentencing convicted criminals.
Jackson said that she believed that critical race theory was not taught in K-12 schools but at the law school level.
Cruz, who pointed out that he and Jackson were a year apart at Harvard Law School and were friendly at the time, noted that Jackson has served on the board of Georgetown Day School since 2019. He pointed to required reading at the private institution, including 'Critical Race Theory: An Introduction,' 'The End of Policing,' 'How to be an Antiracist,' and 'Antiracist Baby,' both by Ibram Kendi.
Judge Jackson defended her sentencing record in child pornography cases when criticized for going soft on these offenders
'As a mother and a judge who has had to deal with these cases, I was thinking that nothing could be further from the truth,' Jackson said
Added that child pornography statutes for sentencing are outdated
She wouldn't comment on whether she would support court packing
Suggested liberal Justices Ruth Bader Ginsburg and Stephen Breyer were wrong to speak against it in the past
Graham compared GOP's mild questioning of Jackson to the harsh treatment Democrats gave Republican Supreme Court nominees in the past
He pointed to a portion of the last book that read: 'Babies are taught to be racist or antiracist, there is no neutrality,' and another portion that recommends babies 'confess when being racist.'
'Do you agree with this book being taught to kids that babies are racist?' Cruz asked.
After a thoughtful pause, Brown replied: 'I do not believe that any child should be made to feel as though they are racist or though they are not valued or though they are less than, that they are victims, that they are oppressors, I don't believe in any of that.'
She added that when Cruz asked her whether she thought critical race theory was taught in schools, she thought he meant public schools. Asked if CRT was taught at Georgetown Day School, she replied 'I don't know because the board is not, the board does not control the curriculum.
Cruz then turned to another book on the school's reading list, 'Stamped' by Ibram Kendi. He noted the book asks the question 'Can we send white people back to Europe?'
The book also calls the concept of colorblindness 'ridiculous.' 'To pretend not to see color is pretty convenient. If you don't actually want to stamp out racism in the first place,' it says.
'Are you comfortable with with these ideas being taught to children as young as four?' Cruz asked.
Brown, maintaining composure but seeming annoyed that she had been asked to answer for the school's reading list, shot back: 'Senator, I have not reviewed any of those books, any of those ideas, they don't come up in my work as a judge. Which I'm respectfully here to address in my work as a judge, which is evidenced from my near decade on the bench.'
Cruz then turned to Jackson's sentencing record in child pornography cases - as Sens. Josh Hawley and Marsha Blackburn have done before - accusing Jackson of giving such criminals to 'substantially lower' sentences than what the prosecutor asked for. He said that Jackson's sentences were on average 47.2 percent lower than what the federal government's prosecutors asked for.
Jackson said the Cruz was not accounting for what the probation officer recommended in such cases. 'I take these cases very seriously as a mother. A judge has to review the actual evidence in these cases and based on Congress' requirement, take into account not only the sentencing guidelines, not only the recommendations of the parties, but also things like the stories of the victims.
Earlier, Jackson had noted that sentencing guidelines were outdated, having been written before the internet age, and did not adequately differentiate from the crime of consuming or distributing child pornography and being involved in its production.
LINDSEY GRAHAM STORMS OUT OF HEARING AFTER RANT ABOUT GITMO DETAINEES
Lindsey Graham walked out of Judge Ketanji Brown Jackson's confirmation hearing Tuesday after arguing with Judiciary Chairman Dick Durbin over the release of Guantanamo Bay detainees following his line of questioning of the Supreme Court nominee.
Durbin, who was trying to defend President Joe Biden's nominee against Graham following his 30 minutes of questioning, spoke to the recidivism rate of those released.
'If you're going to talk about what I said, I'm going to respond to what you said,' Graham shot back, turning his microphone on. 'If we close Gitmo and move them to Colorado, do you support indefinite detention under the law of war for these detainees?'
'I would just say, I'm giving the facts,' Durbin responded.
'The answer's no,' the South Carolina Republican rebutted.
Durbin said the 31 percent Graham referenced of Guantanamo Bay detainees who were released and then were reoffenders dates back to 2005.
'What does it matter when it goes back to? We had them, and they got loose and they started killing people. If you're one of the people killed in 2005, does it matter to you when we released them?
'I'm suggesting the system has failed miserably and advocates to change the system, like she was advocating, would destroy our ability to protect this country. We;re at war, we're not fighting a crime. This is not some passage of time event.
'As long as they're dangerous, I hope they all die in jail if they're going to go back and kill Americans,' Graham said, starting to raise his voice.
'It won't bother me one bit if 39 of them die in prison,' he continued. 'That's a better outcome than letting them go.'
'And if it costs $500 million to keep them in jail, keep them in jail. Because they're going to go back to the fight. Look at the fricken Afghan government that's made up of former detainees at Gitmo. This whole thing by the left about this war ain't working.'
At this point, Graham turned off his microphone, grabbed his water bottle and stormed out of the room.
On the second day of the fiery Senate hearing, there were other developments including:
JACKSON REJECTS CLAIM SHE IS SOFT ON CHILD PORN CASES AND SAYS SENTENCING GUIDELINES ARE OUT OF DATE
Earlier in the hearing, Jackson issued a passionate defense of her history of sentencing child porn offenders as Durbin gave the Supreme Court nominee a chance to address Republican criticism claiming she is too soft on these crimes.
The Democratic senator from Illinois was teeing up a defense for Jackson by allowing her to address the child pornography cases, as well as her judicial philosophy and the issue if court packing.
Jackson would not give a commitment on where she fell on the issue of adding seats to the Supreme Court, which is widely opposed by Republicans. The nominee said she agreed with conservative Justice Amy Coney Barrett that nominees should not share perspectives on politically charged matters, especially when at the nominee level.
'I am not importing my personal views or policy preferences,' she ensured.
Durbin said at the start of the second day of Jackson's confirmation hearing on Tuesday: 'The issue involving child pornography – I want to turn to that issue because it was raised multiple times primarily by the Senator from Missouri and he was questioning your sentencing record in child pornography cases.'
He asked Jackson how she felt knowing that her children, husband and the world heard Republican Senator Josh Hawley accuse her of endangering children with the sentencing of child pornography offenders.
'As a mother and a judge who has had to deal with these cases, I was thinking that nothing could be further from the truth,' Jackson replied.
'These are some of the most difficult cases that a judge has to deal with because we're talking about pictures of sex abuse of children, we're talking about graphic descriptions that judges have to read and consider when they decide how to sentence in these cases,' she continued in an impassioned defense of her judicial record.
The otherwise calm and collected nominee showed emotion and passion when speaking on the topic, visibly shaking at some points, using larger arm movements than in other answers and articulating her words more fervently.
'These people are looking at 20, 30, 40 years of supervision,' she said of offenders. 'They can't use their computers in a normal way for decades. I am imposing all of those constraints because I understand how significant, how damaging, how horrible this crime is.'
'I impose a significant sentence,' Jackson assured, but said she is limited as a judge by what Congress has decided judges can do with cases.
She also said that as a judge, she is limited by what Congress has decided judges can do with cases.
'There's a statute that tells judges what they're supposed to do,' she detailed. 'Congress has decided what it is that a judge has to do when this and any other cases when they sentence.'
'And that statute doesn't say 'look only at the guidelines and stop' the statute doesn't say 'impose the highest possible penalty for this sickening and egregious crime.' The statute says, calculate the guidelines, but also look at various aspects of this offense and impose a sentence that is 'sufficient but not greater than necessary to promote the purposes of punishment.'
She also said that precedent with sentencing in child pornography cases are outdated because they derive from a time when there wasn't the internet and it was based on the volume of images offenders would receive in the mail.
Jackson said the structure of the sentencing guideline is 'not doing the work of differentiating who is a more serious offender in the way that it used to.'
The nominee arrived at the Capitol Tuesday morning for her first day of questioning from members of the Senate Judiciary Committee as a new poll emerged showing a large number of Americans are disconnected from the nominee and don't care whether she is confirmed or not.
Of the 2,005 registered voters surveyed in a Politico/Morning Consult poll released Tuesday, 34 percent don't care or have no opinion on if Jackson is confirmed to replace Justice Stephen Breyer on the Supreme Court.
It's unknown yet if that perspective will shift following the nominees first day of yielding questions for senators, especially as the GOP signals they could have some aggressive lines of attack – including on Jackson's record on sentencing in child porn cases.
If confirmed, Jackson would be the first black woman to serve on the high court in its more than 200-year history.
'Let's make history this week,' the Senate's President pro tempore Patrick Leahy of Vermont said Tuesday during his questioning of the nominee.
JACKSON STANDS FIRM ON REFUSING TO COMMENT ON COURT PACKING
Jackson said Tuesday that she wouldn't comment on court packing – the process of adding extra seats to the Supreme Court in order to sway the majority leaning by the current president in power, who would be able to nominate the additions to the bench.
The idea gained a lot of steam from progressives when Donald Trump was in office and was able to nominate three justices and changed the makeup to a 6-3 conservative majority.
Progressives wanted to expand the court in order to allow a Democratic president to get more justices on the bench with liberal leanings and judicial philosophies.
When answer questions from Chairman Durbin, Jackson said she agreed with conservative Justice Barrett – one of Trump's picks – that a nominee should not comment on any potential future cases or on politically charged matters.
'Judges should not be speaking to political issues – and certainly not a nominee to the Supreme Court,' Jackson said.
She reiterated her perspective that judges should remain impartial and neutral.
Ranking Member Senator Chuck Grassley of Iowa also received an answer to the same tune when asking about court packing.
The Republican senator said that he would 'interpret your answer' as being critical of late liberal Justice Ruth Bader Ginsburg and retiring liberal Justice Breyer, who both said they opposed the notion of court packing.
GRAHAM COMPARES GOP'S TREATMENT OF JACKSON TO HOW DEMOCRATS RAILED REPUBLICAN NOMINEES
Senator Graham pointed to the difference in treatment of Biden's nominee versus how Democrats acted toward Trump's three picks – specifically pointing in his first line of questioning with Jackson on Tuesday to Justice Barrett's faith.
In an awkward exchange with the South Carolina Republican, Jackson said that she was a nondenominational protestant but was hesitant to talk about faith from the stand because she didn't want to tie her judicial practices to her personal religious views.
'Could you fairly judge a Catholic?' Graham asked Jackson in his very first question of the nominee.
'Senator, I have a record of –'
'The answer would be yes,' he interjected. 'And I believe you can. I'm just asking the question because – how important is your faith to you?'
'Senator, personally, my faith is very important,' she replied. 'But, as you know, there is no religious test under Article 6 –' she started, but again Graham cut in to make his point.
'There will be none with me,' he said.
'It is very important to set aside one's personal views,' she said.
'I couldn't agree with you more,' the Republican senator said. 'And I believe you can.'
'So, on a scale of 1-10, how faithful would you say you are in terms of religions?' he pushed.
'You know, I go to church probably three times of the year so that speak poorly of me,' he laughed.
'But do you attend church regularly?'
'I am reluctant to talk about my faith in this way, just because I want to be mindful of the need for the public to have confidence in my ability to separate out my personal views,' the nominee reiterated.
Graham was the second Republican to question Jackson on Tuesday in his 30-minute allotment.
'Well, how would you feel if a senator up here said [of] your faith: 'A dogma lives loudly within you and that is a concern'?' Graham asked, referencing a comment that was made toward Judge Barrett during her confirmation hearing by California Democratic Senator Dianne Feinstein.
'How would you feel if somebody up here on our side said, 'you know, you attend too much church for me' or 'your faith is a little bit different to me,' and they would suggest that it would affect your decision? Would you find that offensive?' Graham asked
'I would if i were you,' after an awkward stumble in attempting to again dodged the question, Graham answered his own inquiry. 'I found it offensive when they said it about Judge Barrett.'
'The reason I ask these questions is because, I have no doubt your faith is important to you and I have zero doubt that you can adjudicate people's cases if they're atheist,' he added of his confidence in Jackson. 'If I had any doubt, I would say so.'
'But the only reason I mention this judge, you're reluctant to talk about it because it's uncomfortable.
Just imagine what would happen if people on late night television called you an effin nut, speaking in tongues because you practice the Catholic faith in a way they couldn't relate to or found uncomfortable?'
'So, judge, you should be proud of your faith. I am convinced whatever faith you have and however often you go to church will not affect your ability to be fair,' he said. 'And I just hope going in the future that we all can accept that and that Judge Barrett, I felt, was treated very, very poorly. So, I just wanted to get that out.'
REPUBLICAN AND INDEPENDENT VOTERS INDIFFERENT ON JACKSON'S CONFIRMATION
Seventy-five percent of voters who say they are Democrats want Jackson confirmed as the first black woman on the Supreme Court of the United States. Rather than the rest of Democrats really opposing Jackson, 20 percent are indifferent to her confirmation, while only 5 percent of Democrats oppose it.
Only 23 percent of Republican voters want President Joe Biden's nominee confirmed.
Surprisingly, however, 41 percent of the GOP subsect don't know whether they want her to ascend to the high court – and 43 percent of independents feel the same.
This could signal that Jackson is a 'safe' nominee since rather than opposition from Republicans and independents, she is met with complacency. It seems to be an odd place for the first ever black woman nominated to the Supreme Court to be sitting.
Figures from the recent poll, which was taken March 18-21, are similar to those from February as voters are more distracted with economic issues like inflation and gas prices than the Supreme Court nominee.
During the first day of hearings on Monday, Jackson and all 22 members of the Senate Judiciary Committee delivered opening statements.
Jackson, 51, promised to be an independent jurist on the high court, deciding cases 'without fear or favor' and emphasizing neutrality on the bench as a way of preemptively fielding Republican criticism in the coming days.
'I know that my role as a judge is a limited one — that the Constitution empowers me only to decide cases and controversies that are properly presented,'Jackson said. 'And I know that my judicial role is further constrained by careful adherence to precedent.'
Jackson has served as a federal appellate judge since last year following eight years as a federal district court judge.
She noted that her parents grew up in the era of racial segregation in the South but said they taught her 'if I worked hard and believed in myself, in America I could do anything or be anything I wanted to be.'
Biden promised during his 2020 candidacy that he would nominate a black woman to the court if he had the opportunity, which Republicans slammed as a way of limiting the field of qualified candidates.
If confirmed, it will be the first time that four women and two black justices were on the bench.
Jackson would be the 116th justice to serve on the high court in its more than 200-year history, only the third ever black person and the first-ever black woman.
With a 50-50 divided Senate, Democrats don't need any Republicans support to get Jackson placed on the Supreme Court – as Vice President Kamala Harris would cast any tie-breaking vote.
But Democrats are hoping for a more bipartisan approach and are worried that if even one
Democrat detracts, it could sink Jackson's confirmation – an unlikely outcome at this juncture.
After full days of questioning on Tuesday and Wednesday, outside experts will testify on Jackson's legal tenure and theory to the panel on Thursday.
Democrats are hoping to confirm Jackson by April 8, before a two week spring recess.
During Monday's opening statements, Democrats hailed Biden's historic selection and praised Jackson's record as a federal appellate and district court judge.
Some Republicans promised respect and praised Jackson's qualifications, but others attacked her record and sought to link her to advocacy groups on the left. Others tried to paint her as 'soft on crime.'
'I can only wonder: what's your hidden agenda?' asked Rep