Ketanji Brown Jackson's confirmation hearing: Day 2

Judge Ketanji Brown Jackson said that the two Supreme Court decisions that secured the right to abortion for women in America are "settled law" of the court.

Jackson went on to say that the two cases "established a framework that the court has reaffirmed and in order to revisit, as Justice Barrett said, the Supreme Court looks at various factors because stare decisis is a very important principle." 

She said that the concept of stare decisis "provides and establishes predictability, stability, it also serves as a restraint in this way on the exercise of judicial authority because the court looks at whether or not precedents are relied upon, whether they’re workable, in addition to whether or not they’re wrong."

However, it makes no difference what a nominee — liberal or conservative — says about the fact that Roe v. Wade is settled precedent. That’s because a Supreme Court justice, unlike a lower court judge, can vote to overturn precedent.

The court is expected to issue a major ruling this summer that could overturn Roe v. Wade and Planned Parenthood v. Casey, in a case involving a Mississippi law that bans abortion after 15 weeks of pregnancy.

GOP Sen. Lindsey Graham began his questioning of Judge Ketanji Brown Jackson by asking her what religious faith she subscribes to. She responded that she is a nondenominational protestant.

Judge Jackson told Graham that while her faith is very important to her, "as you know, there's no religious test in the Constitution under Article VI." 

"And it's very important to set aside one's personal views about things in the role of a judge," she said.

Graham continued, asking the judge "how faithful would you say you are?" She said that she was "reluctant" to talk about her faith because she believed it is important that when evaluating her qualifications the public can "separate out my personal views."

Judge Ketanji Brown Jackson was asked by Sen. Patrick Leahy, a Democrat from Vermont, about accusations that she is "soft on crime or even anti law enforcement" because she worked as a public defender during her career.

Jackson noted in her response that she has multiple family members who have worked as police officers. She said that her brother worked as a police officer in Baltimore, and has two uncles who had careers in law enforcement — one who became the Chief of Police of the City of Miami Police Department in the 1990s.

She said that crime, its effects on the community, and the need for law enforcement "are not abstract concepts or political slogans to me."

Jackson went on to say that as a lawyer and as a citizen, "I care deeply about our Constitution and the rights that make us free." 

"As you say, criminal defense lawyers perform a service and our system is exemplary throughout the world precisely because we ensure that people who are accused of crimes are treated fairly," she said to Leahy and the committee.

She said that it's important to her that people are "held accountable for committing crimes, but we have to do so fairly, under our Constitution." 

Read more about her record on crime here:

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How Ketanji Brown Jackson is preparing for questions about her record on crime

Judge Ketanji Brown Jackson said that the guidance that Congress has given courts for sentencing certain child porn offenders “appears to be not consistent with how these crimes are committed,” and therefore creating “extreme disparity” in the sentences that are being handed down.

Her comments marked the first time she weighed in on why judges are often deviating from the statutory sentencing guidelines in these cases. Jackson said that the current guidelines – which are created by statute but, under Supreme Court precedent, are not binding on judges – are now “leading to extreme disparities in the system."

“It is not doing the work of differentiating who is the more serious offender in the way that it used to,” Jackson said. Courts “are adjusting their sentences in order to account for the changed circumstances, but it says nothing about the courts’ view of the seriousness of this offense."

Ahead of her hearings, several former judges, lawyers and other legal experts have defended Jackson’s record on these cases. Republicans have also zeroed in on the work she did as a vice chair of the US Sentencing Commission, when it issued a 2012 report calling on Congress to revise the guidelines to realign the sentences based on the type of child porn offense and to lower the mandatory minimums of two categories of offenses. Those recommendations were issued unanimously by the commission, which included GOP appointees.

The courts’ “ultimate charge” from Congress “is to sentence in a way that is sufficient but not greater than necessary to promote the purposes of punishment,” Jackson said Tuesday.

Judge Ketanji Brown Jackson defended her advocacy for Guantanamo Bay detainees, a part of her record that Republicans have expressed skepticism over and are likely to question her about.

Jackson said there were lawyers who after 9/11 "recognized we couldn't let the terrorists win by changing who we were fundamentally" and that meant that those accused by the US government of having engaged in the September 11 attacks, under the Constitution, were entitled to representation and fair treatment.

"That's what makes our system the best in the world. That's what makes us exemplary," she added.

As an assistant federal public defender, Jackson represented a Guantanamo Bay detainee, Khi Ali Gul. She also for advocated for detainees in amici briefs in cases before the Supreme Court when she worked at the firm Morrison & Foerster.

Sen. Chuck Grassley brought up during his questioning of Judge Ketanji Brown Jackson that while speaking at an event at the University of Chicago law school in 2020, she quoted Martin Luther King, Jr.'s "I Have a Dream" speech, telling the audience how King said it was his hope that "the sons of former slaves and the sons of former slave owners would be able to sit down together at the table of brotherhood."

Grassley noted that Jackson went on to talk about how quickly things in the country then changed, "including the civil rights laws over the next few years because of civil rights movement," adding that Jackson said in this speech at the University of Chicago, "less than a decade after Dr. King's words, that was the world that you inhabited."

Grassley went on to ask Jackson if these quotes still reflect her views on this "very important topic" of civil rights today. She said yes.

She said that when she was born in 1970 and went to school in Miami, Florida, the city was "completely different." 

Jackson continued: "I went to a diverse public junior high school, high school, elementary school. And the fact that we had come that far was, to me, a testament to the hope and the promise of this country, the greatness of America, that we could go from racially segregated schools in Florida to have me sitting here as the first Floridian ever to be nominated to the Supreme Court So yes, senator, that is my belief." 

Judge Ketanji Brown Jackson was asked about accusations by Republican Sen. Josh Hawley of Missouri that her record as a judge shows that she has handed down lenient sentences to convicted child pornography defendants during her career. Sen. Dick Durbin of Illinois asked Jackson to tell the committee "what was going through your mind" when deciding sentencing during these types of cases.

Jackson began her response by telling the committee that "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" in regards to Hawley's accusations.

Jackson told the committee that Congress has decided what it is that a judge has to do in these and any other cases when they sentence. "And that statute, 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," Jackson said. "The statute says calculate the guidelines, but also look at various aspects of this offense and impose a sentence that is, doesn't say impose the highest possible penalty for this sickening and egregious crime." 

Jackson said that in every child pornography case "it is important to me to make sure that the children's perspective, the children's voices are represented in my sentencing." 

"And what that means is that for every defendant who comes before me, and who suggests as they often do that they're just a looker, that these crimes don't really matter, they collected these things on the internet and it's fine, I tell them about the victim's statements that have come in to me as a judge," she said. 

Judge Jackson said in the past victims have told her "that they will never have a normal adult relationship" and they have gone into prostitution, started using drugs, or developed agoraphobia and been unable to leave the house.

Jackson noted that in each of these cases where the defendants were found guilty she has imposed a significant sentence "and all of the additional restraints that are available in the law." 

"These people are looking at 20, 30, 40 years of supervision. 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," she said.

Some more context: Durbin noted during his remarks that the cases Hawley referred to yesterday during his statement "all resulted in incarceration of some magnitude." 

Durbin said the notion that Judge Jackson looks at child pornography cases "casually or with leniency" is belied by her record.

Last week, Hawley launched a Twitter thread charging that Jackson's record reveals a "pattern" of letting child porn offenders off the hook for their appalling crimes, both as a judge and as a policymaker. "This goes beyond 'soft on crime,'" he charged.

The White House blasted Hawley for the attacks. A White House spokesman called the tweets "toxic and weakly-presented misinformation that relies on taking cherry-picked elements of her record out of context -- and it buckles under the lightest scrutiny."

Durbin said Sunday that Hawley was "wrong" and "unfair" in his analysis.

Read more about this here.

Judge Ketanji Brown Jackson, just as Judge Amy Coney Barrett did during her confirmation hearing in 2020, declined to comment on the idea of court packing, or adding justices to the Supreme Court beyond the current nine.

Some context: Some Democrats have called for adding justices to the high court to counteract the current 6-3 conservative-liberal dominance, an idea that President Joe Biden has not embraced.

Judge Ketanji Brown Jackson on Tuesday outlined what she described as her “methodology” for approaching cases.

Her comments came in response to a question from Senate Judiciary Chairman Dick Durbin of Illinois, who asked her to elaborate on her judicial philosophy, as Republicans have claimed she has not yet been specific enough on that point. She said that the methodology she uses ensures that she is impartial and that she is “adhering to the limits” of her “judicial authority.”

“I am acutely aware that as a judge in our system I have limited power and I am trying in every case to stay in my lane,” she said.

Describing a three-step process, Jackson said step one is ensuring that she was “proceeding from a position of neutrality,” adding that she clears her mind about about any “preconceived notion” for how the case should come out. Step two is taking all the "appropriate inputs” for the case — the arguments, written briefs, hearings, friend-of-the-court arguments, as well as the factual record. The final step is the interpretation of the law to the facts of the case. “This is when I am observing the constraints” on her judicial authority, she said.

In doing so, she she said she is trying "to figure out what the words mean as they were intended by the people who wrote them," while taking into precedent into account.

She will likely have to address this question multiple times Tuesday.