Judge Ketanji Brown Jackson’s writings, remarks and decisions as she wrestled with the highly sensitive issue of child pornography crimes are the focus of a new GOP line of attack on President Joe Biden’s pick for the Supreme Court.
Missouri Republican Sen. Josh Hawley zeroed in on that area of Jackson’s record, with a Wednesday night Twitter thread highlighting examples that he sensationally described as “a pattern of letting child porn offenders off the hook for their appalling crimes” – including a law review note she published as a law student, her work on the US Sentencing Commission and her approach to cases as a judge.
“Every parent in America cares about child porn offenders. I do,” Hawley told CNN on Thursday. “I think everybody watching these hearings is gonna want to hear these questions asked.”
But a CNN review of the material in question shows that Jackson has mostly followed the common judicial sentencing practices in these kinds of cases, and that Hawley took some of her comments out of context by suggesting they were opinions, rather than follow-up questions to subject-matter experts.
Other Republicans have signaled that they expect the issue to come up in her confirmation hearings, which start on Monday, with Tennessee Sen. Marsha Blackburn’s office telling CNN she planned to bring it up during next week’s proceedings. More broadly, the line of attack fits in with the “soft-on-crime” criticisms Republicans are already launching against Democrats in the context of her nomination.
Senate Democrats and the White House are pushing back on Hawley’s narrative, with White House spokesperson Andrew Bates calling it “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.”
As long as Senate Democrats keep their caucus unified behind Jackson, they will have the 50 votes they need for her confirmation. And recognizing this reality – and the lower stakes of Jackson replacing a fellow liberal justice – Republicans have generally previewed that they will keep temperatures cooler around this nomination than the contentious fights that have surrounded other recent Supreme Court nominations.
But at stake is also whether Jackson’s nomination will be a political boon to Democrats, as Biden fulfills a historic promise he made during the campaign to nominate a Black woman to the highest court. Any line of attack that undermines the widespread support she’s received and helps rally the GOP base will be of value of Republicans, who so far have publicly struggled to coalesce around a strategy for Jackson’s nomination.
Senate Majority Leader Chuck Schumer said Thursday that he was “not at all concerned” about the line of attack.
“They do this all the time,” Schumer said.
Jackson’s record on the bench
Hawley pointed to seven specific cases where Jackson – who spent eight years as a trial judge and sentenced more than 100 people – handed down lighter sentences for child pornography offenders than what the Justice Department was seeking and what was recommended by the US Sentencing Guidelines, a formula based on statutes.
Hawley told CNN on Thursday that he had not found a “single” Jackson case of that kind where she sentenced within the guidelines and that her sentences were “almost always below the government’s recommendation.”
Her approach to child porn cases did not come up in her 2021 appellate court confirmation hearing, but in a 2020 opinion she wrote that “the possession and distribution of child pornography is an extremely serious crime because it involves trading depictions of the actual sexual assault of children, and the abuse that these child victims endure will remain available on the internet forever.”
Jackson’s specific record, as well as the bigger picture of how courts tend to approach these cases, put her in the mainstream, and not the outlier that Hawley describes. According to the White House, her sentences in five of the seven cases were the same as or greater than what the US probation office recommended.
The individual reports the probation office offers the court – which analyze the offender’s background and other factors that lead the office to suggest increasing or lowering a sentence – are kept out of the public view. But a public filing from the defendant in one case highlighted by Hawley shows that Jackson’s sentence of 60 months came after the probation office recommended that exact sentence.
It’s also not surprising that Jackson’s sentences ended up lower than the guidelines, as it has become a norm among judges to issue sentences below the guidelines in these child porn cases that don’t involve producing the pornography itself. The guidelines are viewed as out-of-date by many judges, particularly for how they treat the use of computers and other elements that can enhance a sentence under the guidelines.
“Many of the judges don’t apply (the enhancement) because it is so archaic,” attorney Kira Anne West, who represented one of the defendants in the relevant cases, told CNN.
Less than a third of non-production child porn defendants received sentences within the guidelines in 2019, according to a report last year from the US Sentencing Commission, and for 59% of the offenders, the variance was downward.
“It is clear that Judge Ketanji Brown Jackson is not an outlier,” National Association of Criminal Defense Lawyers President Martín Sabelli told CNN. He pointed to 2021 commission data showing that, in the hundreds of child porn cases where the sentence varied downward from the guidelines, the average variance was 50 months. “She exemplifies the approach of the vast majority of federal judges in this context and in other contexts.”
This context helps explain why, in two of the cases highlighted by Hawley, federal prosecutors also recommended sentences lower than what was established by the Sentencing Guidelines, while in several others the prosecutors’ recommendation was at the very bottom of the guidelines.
In three of the seven cases singled out by Hawley, Jackson filed sentencing statistics to the dockets that show that her ultimate sentences in those case were either just below or above the what’s typical for equivalent offenders.
Jackson’s role on the Sentencing Commission
Hawley says he’s troubled not just by her judicial record, but the views she’s elaborated on the policy for how these cases should be handled.
As a vice chair of the US Sentencing Commission from 2010-2014, she was at the center of what has historically been a push-and-pull between Congress and the courts over the discretion judges should be given in sentencing.
The topic of sex crimes was put squarely in front of the US Sentencing Commission, which studied the guidelines for child porn cases while she was vice chair.
Hawley has highlighted three comments she made during a 2012 commission hearing, suggesting these were positions she took showing leniency toward child pornography. But a fuller reading of the transcript indicates she was asking questions to clarify comments made by experts who had been testifying.
The Sentencing Commission hearing focused on child abuse offenses, the gravity of certain crimes, offenders’ motivations and the serious consequences for all child victims.
At the hearing, the GOP-appointed Vice Chairman William Carr called it “one of the most difficult and controversial guidelines we deal with.”
The Jackson remarks now being spotlighted by Republicans represent a small portion of her questions and responded specifically to testimony offered by the many experts who testified. A review of the hearing transcript and interviews with two experts who testified belie the claim that Jackson showed leniency toward child pornography during the daylong session.
In one of the Jackson comments being highlighted by Republicans, she asked those appearing before the commission whether there could be “a less-serious child pornography offender who is engaging in the type of conduct in the group experience level because their motivation is the challenge, or to use the technology.” The full transcript shows that she was basing this question on the specific testimony that was just given by one of the witnesses.
Hawley, in a press release defending his critiques of Jackson, said that her words “speak for themselves.”
“When she does quote from or refer to previous testimony, she does so with approval and indicates the witness has changed her mind on child porn offenders,” Hawley said.
An expert who testified at the hearing told CNN on Thursday that judges could distinguish between serious and less serious offenders – a point he said that Jackson picked up on in the 2012 hearing.
“These are all horrible crimes, but you have to differentiate them, and it’s fair to ask whether there should be different sentences,” University of Massachusetts, Amherst, Professor Brian Levine told CNN on Thursday. Levine, who is in the College of Information and Computer Sciences, testified at the hearing regarding his forensic work for investigations related to child abuse materials.
Levine added that the targeted remarks were “pulled out of a very complicated context” and, he said, “This is a very emotional issue. Nobody wants to hear about these horrible crimes. But there are pedophiles who don’t abuse children and people who abuse children who are not pedophiles.”
Another hearing witness, Jennifer McCarthy, then of the Sex Offender Treatment Program at the New York Center for Neuropsychology and Forensic Behavioral Science, told CNN that Jackson’s comments did not stand out during the witness testimony.
“I wanted to give them some idea that this is not a one-size-fits-all problem, to give them some insight into the different types of offenders and treatments.” McCarthy, who is now in private practice, said on Thursday, of Jackson. “Her questions were in keeping with the discussion, in general, about these types of offenders.
Republicans are also pointing to Jackson commentary dating back to her days studying at Harvard Law, where she published a 1996 law review note now being touted by Hawley.
She argued that courts were applying “problematic” and “unprincipled” frameworks to decide whether various sex crimes regulations – like registries, communication notification requirements and DNA testing – were constitutional.
Her conclusion was what Hawley highlighted in his tweets. Jackson wrote that “in the current climate of fear, hatred, and revenge associated with the release of convicted sex criminals, courts must be especially attentive to legislative enactments that ‘use … public health and safety rhetoric to justify procedures that are, in essence, punishment and detention.’”
A ‘collision’ with Congress
The GOP skepticism to Jackson now echoes how Republicans – including Iowa Sen. Chuck Grassley, who will get to question Jackson next week – viewed the judges’ call for retooled guidelines in these cases then.
Grassley and other Republicans submitted a letter to the commission in 2012 expressing concerns that “the Federal judiciary fails to appreciate the severity of child pornography to the victims and to the society at large.”
The tension between Congress and the courts was on Jackson’s mind as well, according to notes from a 2011 commission forum that are now being referenced in a research document prepared by the conservative group, Article 3 Project.
“[I]s this an area in which Congress and the Judiciary are headed for a collision?” said the notes, which were included in her publicly released Senate confirmation documents. “What, if anything, can the Commission do to bridge the gap between the branches on the question of the appropriate sentences for child pornography offenders?”
Notably, when the commission published the 2012 report on its work studying child porn sentences, the report was issued unanimously. The commission includes several Republican appointees, and among those signing off on the report was Dabney Friedrich, who was later appointed to the federal bench by former President Donald Trump.
On Thursday, Jackson was asked by CNN about Hawley’s allegations as she traveled through the Capitol halls. She did not comment, but at next week’s hearings, it’s almost guaranteed she’ll be asked to explain some of the cases and comments Hawley has zeroed in on.
“I mean, this woman’s record has been carefully reviewed three different times and ended up with a bipartisan support. She has the support of law enforcement, victims’ rights organizations, and it’s just a lie to suggest that,” said Durbin, who is the Senate’s no. 2 Democrat.
Hawley insisted he wasn’t trying to tarnish her reputation or degrade the proceedings that Republicans have promised will be substantive and above board.
“This is her record. This isn’t a personal attack on her,” he told CNN. “This is her record, her cases. These are her words, her statements and it’s on a really serious policy issue.”
CORRECTION: A previous version of this story misstated the number of cases, among those being scrutinized, in which Jackson handed down a sentence that was the same as or greater than what the US probation office recommended.
CNN’s Jessica Schneider, Joan Biskupic, Ariane de Vogue, Manu Raju, Lauren Fox and Ted Barrett contributed to this report.