Judge Ketanji Brown Jackson 3.22.22
Fact-checking Ted Cruz's claims against Judge Ketanji Brown Jackson
05:27 - Source: CNN

A version of this story appeared in CNN’s What Matters newsletter. To get it in your inbox, sign up for free here.

CNN  — 

Republican senators started the week promising Judge Ketanji Brown Jackson a respectful and thorough examination of important legal issues in her Supreme Court confirmation hearings.

What they ended up focusing on, more than anything else, was child pornography and pushing the false notion that Jackson is sympathetic to people who consume it.

“What I regret is that in a hearing about my qualifications to be a justice on the Supreme Court, we’ve spent a lot of time focusing on this small subset of my sentences,” Jackson told Missouri Sen. Josh Hawley after hours of questioning Wednesday.

On Tuesday, a White House spokesman accused Hawley of baiting followers of QAnon, the bizarre conspiracy movement that circulates the false idea that Washington is run by a cabal of sex offenders.

What was promised vs. what happened

The hearings have been a departure from the staid and issues-oriented inquiry Republicans said they would provide – and have at times felt more like a place to try out political talking points heading into the midterm elections than a Supreme Court confirmation hearing.

“No one is going to ask you, with mock severity, ‘Do you like beer?’” Texas Sen. Ted Cruz promised Jackson on Monday.

Instead, during questioning Tuesday, he asked her if she thought all babies were racist.

A turn toward critical race theory

Cruz’s question about babies was part of a riff on critical race theory, which the senator argued is taught at a private school, Georgetown Day School in Washington, DC, where Jackson sits on the board.

“I have not reviewed any of those books, any of those ideas,” Jackson told Cruz. “They don’t come up in my work as a judge, which I am respectfully here to address.”

Rather than a legal issue, critical race theory is an academic theory that is mostly taught in colleges and graduate programs and that acknowledges that racism is systemic and institutional in American society. It’s also a major Republican talking point heading into this year’s midterms, where they will push the idea of “parental rights.”

Any high ground Republicans might have claimed on the issue of race was eroded when Indiana Sen. Mike Braun questioned in a conversation with local reporters whether the US Supreme Court should have been in the business of protecting interracial marriage. He later clarified the unfortunate comments.

The most talked-about issue

It was distorted allegations about child predators that soaked up the most oxygen.

“I believe you care for children, obviously your children and other children,” Cruz told Jackson. “But I also see a record of activism and advocacy as it concerns sexual predators that stems back decades, and that is concerning.”

A change in tone against Jackson

By Wednesday, even senators who had avoided the child pornography line earlier in the hearings were all-in on pressing Jackson about it.

Just note the change in Sen. Lindsey Graham of South Carolina.

“The hearings are going to be challenging for you, informative for the public, and respectful by us,” Graham told the nominee on Monday, when he made glancing and nonspecific references to Jackson’s record as a judge.

Two days later, he was interrupting her attempts to explain how the rise of the internet has affected sentencing for people facing jail for possessing child pornography and how Congress has not updated laws.

“I hope you go out to jail for 50 years if you’re on the internet trolling for images of children and sexual exploitation. See, you don’t think it’s a bad thing. I think that’s a horrible thing,” Graham said, raising his voice and fuming while completely mischaracterizing her words.

The facts about Jackson’s record

The fact is that Jackson repeatedly said viewing child pornography was a horrible thing.

And she pointed out that she gave prison sentences in each of the seven cases Republicans scrutinized from her eight years as a federal judge, when she gave sentences lighter than those recommended by sentencing guidelines.

Her actions were in line with those of most other federal judges, since most offenders got sentences outside the guidelines, according to a 2021 report by the US Sentencing Commission.

The fact is also that a former federal prosecutor, Andrew C. McCarthy – who opposes Jackson’s nomination for other reasons – has argued that the smear about sexual predators is “meritless to the point of demagoguery.” A group of retired federal judges, including two appointed by Republicans, also dismissed the attack as baseless.

Despite that context, Hawley read, in detail, the disgusting facts from one case involving child pornography.

The context: There’s an election coming

After the White House raised the connection between QAnon’s unfounded obsession with child predators, Hawley on Wednesday made the jump to the coming elections.

“If they want to dismiss parents’ concerns about their children’s safety and they want to dismiss concerns about crime as a conspiracy theory, take that argument to the polls,” he said.

RELATED: Watch CNN’s full fact check of Cruz’s questions for Jackson.

Echoes of Thurgood Marshall

Jackson would be the first Supreme Court justice since Thurgood Marshall with substantial experience representing poor defendants, which she got during her time as a federal public defender, one expert told CNN’s Brandon Tensley. Supporters see that experience as an asset rather than making her soft on crime.

Marshall, the first Black Supreme Court justice, also faced scrutiny about his record on crime during confirmation hearings, according to Tensley.

Issues of the day

There were other topical issues Republicans focused on and for which Jackson was less willing to share her views.

Court packing. Some Democrats want to expand the size of the Supreme Court or change the terms of justices.

Jackson refused to weigh in on that idea. “Judges should not be speaking to political issues,” she told Senate Judiciary Committee Chairman Dick Durbin on Tuesday.

Abortion. It’s very possible the precedent of Roe v. Wade will be overturned by this June. If so, states will be reevaluating their own abortion-related laws.

Republican senators were keen on describing late-term abortions in great detail. Jackson refused to weigh in on the issue, other than to say that Roe v. Wade and another case, Planned Parenthood v. Casey, were settled law.

Tennessee Sen. Marsha Blackburn argued that Jackson had “attacked pro-life women” in a 2001 legal brief she co-authored, but research by CNN’s Daniel Dale showed that to be a mischaracterization. The brief described a crowd of protesters as “hostile, noisy.”

Jackson has remained calm throughout the hearing and appears to be on track to emerge with the support of Democrats, which is all she will need for confirmation. But the footnotes for these hearings will need some explanation about why seven child pornography cases over which she presided were the focus of so much scrutiny.