Doing due diligence in Judge Jackson’s hearing

Yesterday, the U.S. Senate Judiciary Committee began its hearing on Judge Ketanji Brown Jackson’s nomination to the U.S. Supreme Court. If confirmed, Jackson would be the first black female justice on the court. Her nomination comes just a couple of years after the media and Democrats together tried to destroy Justice Brett Kavanaugh. Now, the media and Democrats are circling the wagons around Judge Jackson.

The Senate is almost certain to confirm Jackson. Democrats control the Senate, and the filibuster for Supreme Court nominations no longer exists. President Joe Biden and the U.S. press corps are selling this nomination as a historic moment for the nation. The chattering class and talking heads cannot understand how anyone would stand in the way of this nominee’s historical momentum. A lot of people might conclude it is not worth asking tough questions given the historic moment and the nation’s sense of destiny. But that is exactly why senators should question Jackson about her judicial record and philosophy.

Just last year, President Biden appointed Jackson to the U.S. Court of Appeals for the District of Columbia Circuit, long considered a waiting room for Supreme Court nominees, and she received bipartisan support. Lawsuits against the federal government go through that appellate court, underlining its importance. Chief Justice John Roberts and Justices Kavanaugh, Clarence Thomas, Antonin Scalia, and Ruth Bader Ginsberg all served on that court. Jackson’s appointment was a sign she would be in the running for a Supreme Court nomination. Once Biden made it clear he would nominate only a black female judge (a promise made in political expediency), Jackson was the obvious choice.

Now, as her hearing commences, Democrats demand that Republicans behave differently than Democrats behaved just a few years ago. When Kavanaugh endured his confirmation hearing, Democrats interrupted the proceedings 63 times before noon on the first day, and protestors regularly stood up to add to the disruptions. Democrats then went on to boycott Justice Amy Coney Barrett’s confirmation hearing. The level of decorum allowed for Democrats will be assailed if Republicans reciprocate. But Republicans should not shy away from the moment. Jackson has problems in her record worth probing.

Jackson has served as a public defender for the federal government. In so doing, she represented some of the terrorists held at Guantanamo Bay. A public defender is assigned cases and the U.S. Constitution expects all defendants to get a zealous defense, even the unsavory ones. But Republicans have a right to know why Jackson continued her defense of terrorists even after she left the public defender’s office for private practice. She joined the law firm Morrison & Foerster, which had other lawyers who also provided legal representation for al-Qaeda operatives held at Guantanamo Bay.

Then there are the concerns raised by Sen. Josh Hawley, R-Mo., who has noted a pattern in Jackson favoring light sentences for those convicted of child pornography. In Hawley’s own words, Jackson has “a pattern of letting child porn offenders off the hook for their appalling crimes.” Her defenders claim the accusation is unfair, but a judge’s entire record is fair consideration for a lifetime appointment to the Supreme Court.

In a remarkable yet unsurprising effort, press operations from CNN to the Associated Press are already defending Jackson from Hawley’s accusations. CNN claims Jackson did not deviate from existing sentencing guidelines. Hawley, on the other hand, notes at least seven specific cases where Jackson sentenced child pornographers to less time than the U.S. Justice Department requested and less time than federal sentencing guidelines suggest.

Federal judges and the U.S. Sentencing Commission, which establishes uniform guidelines for federal prison sentences, have long been criticized for being too lenient with child pornographers. In 2012, Sen. Charles Grassley of Iowa and other Republicans sent a letter to the commission stating that the federal court system “fails to appreciate the severity of child pornography to the victims and to the society at large.” At the time, Jackson served as vice chairwoman of the commission.

Democrats act outraged that Republicans would ask these questions. They have taken the position that Jackson’s record is unassailable. Others demand the GOP forego the same ruthlessness Democrats have used to try to stop nominees in the name of historicity and the inevitably of the nomination.

Jackson, if confirmed, will be to the left of Justice Stephen Breyer, whose seat she would fill. Though she will check two boxes for diversity in terms of gender and skin color, her ideology will be just another Harvard Law School graduate with uniformly progressive views.

Nomination hearings are not proceedings in which senators should rubber-stamp lifetime appointments. Judge Ketanji Brown Jackson has a record and that record requires the same scrutiny applied to any other nominee. More importantly, senators need to ask her to explain her judicial philosophy. Republicans should be bold and ask her probing questions. They must keep the hearing fully respectful and yet truly candid. Full respect demands asking the right questions and then listening carefully to her answers. The whole nation needs to hear those answers.