A group of retired federal judges – including two Republican appointees – told the Senate Judiciary Committee on Monday night that Judge Ketanji Brown Jackson’s record on child pornography sentencing is “entirely consistent” with the records of other judges across the country, rejecting criticism from Missouri GOP Sen. Josh Hawley and others.
The letter, first obtained by CNN and sent to the committee after the first day of hearings, rejects allegations that Hawley first tweeted out last week claiming that Jackson’s record includes a “pattern of letting child porn offenders off the hook for their appalling crimes.” It aligns with a CNN review of the material in question that showed Jackson mostly followed the common judicial sentencing practices in the specific category of cases.
“Judge Ketanji Brown Jackson’s record in individual cases is entirely consistent with the nationwide patterns described by the U.S. Sentencing Commission, and what the DOJ prosecutors or U.S. court probation departments have recommended,” reads the letter, addressed to Chairman Dick Durbin, an Illinois Democrat, and ranking member Chuck Grassley, an Iowa Republican, and penned by retired Judge Nancy Gertner of the US District Court for the District of Massachusetts.
Gertner is now a senior lecturer of law at Harvard Law School. Other retired judges who signed the letter include Richard Holwell, a George W. Bush nominee to the US District Court for the Southern District of New York, and John Martin, a George H.W. Bush nominee for the US District Court for the Southern District of New York.
At the first day of her confirmation hearing on Monday, Hawley warned Jackson that he was going to ask her about her record Tuesday. “She hasn’t had the chance yet to respond to this, and she deserves that chance,” he said.
“To the extent she departed, it was well within the mainstream of what other judges were doing nationwide by judges appointed by both Republicans and Democrats,” Gertner wrote. She added that Jackson’s record – both as a commissioner on the US Sentencing Commission and as a judge on the US District Court for the District of Columbia – “is entirely consistent with the record of other district court judges across the country (appointed by presidents of both parties) as well as with the position of the Department of Justice.”
She noted that bipartisan and unanimous reports from the US Sentencing Commission had strongly criticized the guidelines’ treatment of child pornography as “unduly severe” in so-called non-production cases in which the defendant looked at pornography but did not manufacture, produce or purvey it.
She said that “in light of the Commission’s acknowledgment that the child pornography guidelines in the non-production cases were too severe” federal judges “nationwide rarely followed them.”
Hawley’s original tweets – targeting a handful of Jackson’s cases – triggered an angry dissent last week from the White House and Democrats.
White House spokesperson Andrew Bates called Hawley’s 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.”
A review by CNN revealed that Jackson’s specific record on child pornography crimes, 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 described. According to the White House, Jackson’s sentences in five of the seven cases that had been singled out by Hawley were the same as or greater than the US probation office recommended.
Hawley acknowledged at Monday’s hearing the defense made for Jackson’s record on these cases.
“I will note that some have said that the federal sentencing guidelines are too harsh on child sex crimes, especially child pornography. I’ve heard that argument a lot in recent days. The chairman quoted someone earlier today who takes that point of view,” Hawley said. “I’ll just be honest, I can’t say that I agree with that.”
The new letter notes that “government prosecutors formally moved for a below-range sentence in roughly 20% of these cases,” and that in 2013 the Justice Department called for a review of the guidelines for the cases in question.