Judge Ketanji Brown Jackson, President Joe Biden’s pick to replace Justice Stephen Breyer on the Supreme Court, spent two days during her Senate Judiciary Committee confirmation hearing ducking questions posed by Senate Republican members of the committee. The Republicans were not probing into Judge Jackson’s personal life, as Democratic senators had done so disgracefully in trying to take down Justices Clarence Thomas and Brett Kavanaugh during their confirmation circuses. The Republican members of the Judiciary Committee asked Judge Jackson questions relevant to where she would be coming from as a Supreme Court justice.
The fact that Judge Jackson is the first black woman nominated for a seat on the Supreme Court does not immunize her from being asked tough questions about her judicial record and the cases she worked on as a defense attorney. Yet Senators Lindsey Graham, Ted Cruz, Josh Hawley, and other Republican members of the Judiciary Committee were labeled racists for doing just that.
Republicans asked perfectly legitimate questions to better understand Judge Jackson’s judicial philosophy, the rationale behind the lenient criminal sentences she handed down as a federal district court judge, and her work as a defense attorney for Guantanamo Bay detainees. They also wanted to hear Judge Jackson’s views on a key issue that affects the institutional legitimacy of the Supreme Court – progressive proposals to pack the Court.
Judge Jackson refused several times to provide her views on court packing. Whether to increase the number of Supreme Court justices from the present nine members is a policy question, as Judge Jackson said. However, packing the Court at the whim of the partisan majority du jour is also a question that goes to the heart of preserving the legitimacy of the Supreme Court as an independent judiciary. Even the liberals Justice Breyer, for whom Judge Jackson clerked, and Justice Ginsberg said that increasing the number of justices was a bad idea, an opinion they expressed while they were serving on the Supreme Court.
Judge Jackson did not want to offend her progressive left supporters by going on record opposing one of the progressive left’s key agenda items.
Judge Jackson also did not want to alienate her transgender activist supporters by answering Senator Marsha Blackburn’s question on whether she could define the word “woman.” The judge did not want to touch that hot potato.
“I can’t,” Jackson replied. “You can’t?” Senator Blackburn asked. “Not in this context. I’m not a biologist,” Judge Jackson said.
At least, Judge Jackson was willing to acknowledge that there is a possible biological component in defining what constitutes a “woman.” But as Senator Blackburn later tweeted, “It’s a major red flag that a Supreme Court nominee backed by the far-left refuses to define the word ‘woman.’”
Judge Jackson tried to portray herself as approaching the cases she decides with “impartiality” and by “staying in my lane.” Judge Jackson even sounded like the late Justice Antonin Scalia when she said at one point that her decisional methodology requires her to examine the text of the Constitution and of statutes as written. She claimed that it’s “appropriate to look at the original intent, the original public meaning of the words when one is trying to assess” cases. But Judge Jackson’s judicial record belies her words. She is the poster child for judicial activism – legislating from the bench.
For example, Judge Jackson ignored Congress’s plain words granting the Homeland Security Secretary with “sole and unreviewable discretion” to expeditiously deport illegal immigrants who were in the United States for less than two years. She decided that the Trump administration had acted arbitrarily with “no evident consideration of the considerable downsides of adopting a policy that, in many respects, could significantly impact people’s everyday lives in many substantial, tangible, and foreseeable ways.”
Judge Jackson stepped way out of her judicial lane. She substituted her policy preference for the clear policy decision of Congress. Judge Jackson felt that it was important for the Homeland Security Secretary to take into account the impact of potential deportations on the everyday lives of the affected illegal immigrants. But that was not what Congress decided. It had vested sole and unreviewable authority for certain expedited removals of illegal immigrants with an executive branch agency.
Judge Jackson brushed aside the applicable statutory language. She then extended the reach of her judicial activism far beyond her own district court’s jurisdiction by issuing a nationwide injunction against enforcing the Trump administration’s “expedited removal” procedure.
Judge Jackson bowed to the wishes of the progressive plaintiffs that included the American Civil Liberties Union. Her ruling was overruled by a unanimous three-judge panel of the U.S. Court of Appeals for the D.C. Circuit, including judges appointed by former Presidents Obama and Carter.
Judge Jackson also pleased the ‘soft on criminals’ crowd with her light sentences, especially for child pornographers. In tense exchanges with Senators Cruz, Lindsey, and Hawley, the judge was pressed on why she issued for more lenient sentences for child pornographers than those recommended by the sentencing guidelines or even the case prosecutors.
In one egregious case, a 19-year-old man had pleaded guilty to downloading and trading images and movies of child sexual abuse, including of boys under the age of 13. The prosecutor recommended a sentence of two years. The probation officer recommended 18 months. Judge Jackson decided to sentence the man to only 3 months in prison, followed by supervised release.
Judge Jackson tried to explain away her failure to follow Congress’s clear policy choice to have judges impose harsher sentences for child pornographers based on the number of images found in the possession of a defendant. She said that Congress’s legislative policy on enhanced sentences was outdated in the age of the Internet. The Internet, she declared, had made it much easier for individuals to amass vast troves of child pornography images than in the days when snail mail was the main channel for distributing and receiving such images.
Judge Jackson expressed concern that defendants caught with thousands of child pornography images on their computers could be subject to harsher sentences based on their online possession of large numbers of images. “You can be doing this for 15 minutes, and all of a sudden you are looking at 30, 40, 50 years in prison,” Judge Jackson said. “Good, absolutely good,” Senator Lindsey replied.
In any event, once again Judge Jackson stepped way out of her judicial lane. If Congress’s law dealing with enhanced sentencing for individuals caught with large numbers of child pornography images is outdated in the computer and Internet era, it is up to Congress – not a judicial activist like Judge Jackson – to change the law.
It’s worth noting that Justice Breyer, who Judge Jackson would be replacing, has sometimes been relatively tough on criminal justice matters. He sided at times, for example, with government authorities on search and seizure and sentencing.
If Judge Jackson is confirmed, as expected, leftists will have a far more reliable ally in their fights against law enforcement and incarceration. She foreshadowed during a speech back in 2015 that she thought critical race theory was relevant to sentencing, a perspective she tried to play down during her confirmation hearing.
During her days as a public defender and in private practice, Jackson defended Guantanamo detainees. She explained that it is a “core constitutional value” for even those accused of the most heinous crimes to have legal representation. But Jackson’s defense of the Guantanamo defenders is not the issue. What’s troubling is that Jackson chose to align herself with radical Left opponents of the war on terror in the rhetoric she used in a legal brief challenging the indefinite detention of alleged terrorists deemed enemy combatants.
The brief accused former President George W. Bush and Secretary of Defense Rumsfeld of engaging in acts in their official capacity that “constitute war crimes and/or crimes against humanity” in violation of the Geneva Conventions. That is music to the ears of the far Left.
Judge Jackson made no major gaffes during her confirmation hearing and appears to be on her way to Senate confirmation. The leftist groups that have supported her nomination such as Demand Justice, MoveOn, Indivisible, Justice Democrats, and Demos could not be happier.