Schumer warns some GOP colleagues have gone too far in questioning of Judge Jackson
From CNN's Lauren Fox
Senate Majority Leader Chuck Schumer speaks to reporters following a lunch meeting with Senate Democrats at the US Capitol on March 22. (Drew Angerer/Getty Images)
Senate Majority Leader Chuck Schumer called some of his Republican colleagues “respectful” in their questioning of Judge Ketanji Brown Jackson but told reporters that others have attacked her unfairly.
Asked specifically about GOP Sen. Josh Hawley’s charges that she is soft on crime because of how she sentenced a series of child pornographers, Schumer said, “look some Republicans have treated her respectfully, but not everybody.”
“When they can’t lay a glove on her, they come up with these outlandish accusations, which the American public just doesn’t buy,” Schumer said.
5:48 p.m. ET, March 22, 2022
Judge Jackson: Critical race theory doesn't come up in my work and I don't rely on it as judge
GOP Sen. Ted Cruz questions Supreme Court nominee Judge Ketanji Brown Jackson during her Senate Judiciary Committee confirmation hearing on Tuesday. (Anna Moneymaker/Getty Images)
GOP Sen. Ted Cruz pressed Judge Ketanji Brown Jackson on her opinions on critical race theory, referring to a speech she gave at the University of Michigan in 2020 where she mentioned Nikole Hannah-Jones' 1619 Project.
Jackson responded, "It doesn't come up in my work as It's never something that I have studied or relied on, and it wouldn't be something that I would rely on if I was on the Supreme Court."
Cruz continued to press Jackson on the subject and whether it should be taught to young children in schools.
The GOP senator grilled Jackson on books about racism and critical race theory that are available at Georgetown Day School, an institution that she's a board member of. Jackson said that she was not aware of the books Cruz had mentioned and maintained that the subject is not something she would use as a Supreme Court justice or something that has been relevant to her as a judge.
"Senator, I have not reviewed any of those books, any of those ideas. They don't come up in my work as a judge, which I am, respectfully, here, to address," she said.
Watch the exchange between GOP Sen. Ted Cruz and Judge Ketanji Brown Jackson over critical race theory:
4:05 p.m. ET, March 22, 2022
Jackson says she sometimes has "nightmares" about child sex cases she presided over
From CNN's Mike Hayes
(Mandel Ngan/AFP/Getty Images)
Judge Ketanji Brown Jackson responded to the concerted effort of GOP senators to characterize her as being soft when it comes to sentencing on sex crimes, saying, "As a mother, these cases involving sex crimes against children are harrowing."
She said that as a trial judge she has had to deal with graphic evidence in these cases that "keep you up at night" because you're "seeing the worst of humanity."
"When there are victims statements that are presented when people talk about how their lives have been destroyed as children. How the people who they trusted to take care of them were abusing them in this way and putting the pictures on the internet for everyone to see. I sometimes still have nightmares about the main witness. The woman I mentioned earlier who cannot leave her house because of this kind of fear."
4:26 p.m. ET, March 22, 2022
Why senators keep asking about stare decisis
From CNN's Tierney Sneed
Repeated discussions about “stare decisis” are ways senators can probe Judge Ketanji Brown Jackson’s willingness to overturn Supreme Court precedent without asking her about specific rulings (which Jackson is unlikely to comment on).
As a lower court judge, Jackson is supposed to follow Supreme Court precedent, but on the Supreme Court – as senators have noted this week – she as a justice would have the ability to overturn those precedents.
Stare decisis is the legal concept that discourages justices from overruling precedent unless certain conditions are meant. The principle sets out that, even if a justice thinks a precedent is wrong, there are other factors he or she should consider before voting to overrule. Part of the idea is that, for society to function, law must remain relatively stable and not swing drastically with changes of the court’s make up. Among the other factors the Supreme Court should consider, under the principle, such as what had changed since the original precedent was handed down and what risks overturning it would pose in the public’s confidence in the law.
“Sometimes the Supreme Court will issue a ruling and determine later that it's not actually doing what the court intended, and whether or not there are new facts or new understanding of the facts,” Jackson said, in response to questions from Democratic Sen. Amy Klobuchar. “Those various criteria are what the court looks at to decide whether or not to overturn a precedent, and they would be what I would look at if I were confirmed to the Supreme Court.”
She later added that it was very “important to have stability in the law for the rule of law purposes so that people can order themselves and predict their lives given what the Supreme Court has already said.”
In recent Supreme Court decisions overturning precedent, the liberal minority has accused the conservative majority ignoring some of the principles of stare decisis to overturn precedents that conservatives don’t like.
3:53 p.m. ET, March 22, 2022
Jackson discusses SCOTUS First Amendment precedent, which some justices wants to revisit
From CNN's Mike Hayes
Sen. Amy Klobuchar questions Supreme Court nominee Judge Ketanji Brown Jackson during her confirmation hearing on Tuesday. (Alex Brandon/AP)
Judge Ketanji Brown Jackson was asked during the hearing about journalists and the importance of freedom of the press and the protection of the First Amendment. She said that freedom of the press "is about the dissemination of information, which is necessary for a democratic form of government."
Sen. Amy Klobuchar, a Democrat from Minnesota, noted that the Supreme Court ruled unanimously for the press in the landmark case, New York Times Co. v. Sullivan, holding that when "newspapers report on public officials, they're only liable for untrue statements that are published with knowledge or reckless disregard for whether the statement was false." Klobuchar asked Jackson if she agrees that those principles are just as relevant today as they were when the Supreme Court first decided that case in 1964.
"New York Times v. Sullivan is the continuing binding precedent of the Supreme Court, and it does state the principles that the court has determined are undergirding the first amendment right to free press," Jackson responded.
In a follow-up question, Klobuchar asked Jackson how she would approach a case that sought to limit or overturn the central holding Times v. Sullivan.
"Any time the court is asked to revisit a precedent, there are criteria that the court uses to decide whether or not to overrule a precedent," Jackson said.
She said that the Supreme Court "should maintain its precedents for the law" but if the court is asked to revisit a precedent, its criteria are "whether the precedent is wrong and, in fact, egregiously wrong, the court has said, whether there's been reliance on that precedent, whether the — there are other cases that are similar to the precedent or that relied on the precedent that have now shifted so that the precedent is no longer on firm footing."
"Sometimes the Supreme Court will issue a ruling and determine later that it's not actually doing what the court intended, and whether or not there are new facts or new understanding of the facts," Jackson noted.
Sen. Mike Lee questions Supreme Court nominee Judge Ketanji Brown Jackson during her confirmation hearing on Tuesday. (Alex Brandon/AP)
An extended line of GOP Sen. Mike Lee questions about “unenumerated rights” in the Constitution may have seemed academic, but Lee was implicitly getting at some of the most controversial and impactful areas of constitutional interpretation that the Supreme Court deals with.
Cases wrestling with issues like abortion, voting and privacy often lead the Supreme Court to flesh out rights the court says the Constitution implicitly protects. These so-called “unenumerated rights” are contrasted by the “enumerated” rights laid out explicitly in the Constitution, like the Second Amendment’s right to bear arms. Conservatives have pointed to rulings relying on an unenumerated rights — like the decisions enshrining abortion rights that built upon earlier rulings finding a right to privacy — to arguing that judges are improperly acting as policymakers, and not legal interpreters.
On Tuesday, Lee drew Jackson’s attention to the Constitution’s Ninth Amendment, which says “numeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Lee asked Jackson what rights had been identified as flowing from that amendment, to which she responded, “as I understand it has not identified any particular rights flowing directly from the Ninth Amendment; although, as you said, the text of the amendment suggests that there are some rights that are not enumerated."
Noting the “considerable debate” around how courts should go about determining such rights, he asked Jackson about how courts should go about interpreting what rights can be derived from that provision. He wondered whether it’s been left purely to the discretion of the Supreme Court and what the justices “deem appropriate at the moment,” rather than historical precedent.
Jackson said that “one of the constraints” that binds her approach is the text of the Constitution and “what it meant to those who drafted it.”
GOP Sen. John Cornyn, earlier in the proceedings, came at the feeling conservatives have about the Supreme Court going beyond what the Constitution dictates from a different direction, in a series of questions about the Supreme Court’s 2015 same-sex marriage ruling. He expressed skepticism of the basis of that a ruling, a legal concept of “substantive due process,” which the court derived from other parts of the Constitution that call for “due process” protections.
“The Constitution doesn't mention anything about substance when it talks about due process, the 14th Amendment and the Fifth Amendment don't talk about substantive due process; it talks about due process of law,” Cornyn maintained.
1:59 p.m. ET, March 22, 2022
The confirmation hearing has resumed. These are the senators that will question Jackson next.
(Saul Loeb/AFP/Getty Images)
The Senate Judiciary Committee hearing has resumed after taking a lunch break.
More on today's hearing: Senators may ask questions of the nominee for 30 minutes each, according to the schedule outlined by the committee. The questioning is expected to stretch late into the evening. On Wednesday, lawmakers will be allowed 20 minutes each for a second round of questioning.
CNN's Clare Foran contributed reporting to this post.
2:06 p.m. ET, March 22, 2022
Here are photos from day 2 of Judge Ketanji Brown Jackson's confirmation hearing
Photographs by Sarah Silbiger for CNN
It's the second day of confirmation hearings for Ketanji Brown Jackson. If confirmed, Jackson will become the first Black woman to serve on the US Supreme Court.
Supreme Court nominee Ketanji Brown Jackson testifies on the second day of her confirmation hearings on Tuesday, March 22. Sarah Silbiger for CNN
US Sen. Dick Durbin, center, questions Jackson on Tuesday. Durbin, a Democrat from Illinois, is chairman of the Senate Judiciary Committee. Sarah Silbiger for CNN
Jackson is seen on a video screen in the hearing room Tuesday. Sarah Silbiger for CNN
Jackson's husband, Patrick, takes notes during Tuesday's testimony. He is wearing socks with Ben Franklin on them. Sarah Silbiger for CNN
People wait in line for a chance to sit in during the hearings on Tuesday. Sarah Silbiger for CNN
There is one group of people who aren’t fans of modern-day Supreme Court confirmation hearings: The justices themselves.
Most recently, at an event in February, at New York University School of Law, Justice Sonia Sotomayor worried that the current intensely partisan atmosphere of hearings will impact the reputation of the Court.
She noted that Justice Ruth Bader Ginsburg, who served as a lawyer to the ACLU, was confirmed 96-3 and Justice Stephen Breyer, who worked at one point for the liberal lion Sen. Ted Kennedy, was confirmed 87-9. But that has changed in recent years, and the hearings themselves have become partisan fests justices feel are simply to be endured.
“Surely it has an effect on the appearance of the impartiality of the court,” Sotomayor (confirmed 68-31) said. “We are far from the times when Supreme Court nominees would receive nearly unanimous approval even in divided Congresses and, the more partisan the voting becomes, the less belief that the public is likely to have that congress is making a merits based or qualifications based assessment of judicial nominees.”
“Is it going to affect directly the court’s functioning?” she asked. “It could.”
During an event at Notre Dame in 2021, Justice Clarence Thomas — who was confirmed only after contentious hearings when Anita Hill made sexual harassment claims against him which he denied — said he thinks the hearings have changed because judges are failing to respect their boundaries on the court.
“I think a lot of the pressure on the nomination and the selection process is because of that,” he said. “I think the court was thought to be the least dangerous branch and we may have become the most dangerous; and I think that is problematic and hence the craziness during my confirmation was one of the results of that. It was absolutely about abortion — a matter I had not thought deeply about at the time.”
Before she died, Ginsburg would often lament the current state of play. In 2017 at the Rathbun Lecture on a Meaningful Life, she said that a senator who had supported her back in 1993 “today wouldn’t touch me with a 10-foot pole”.
“I wish there were a way I could wave a magic wand and put it back when people were respectful of each other and the Congress was working for the good of the country and not just along party lines,” Ginsburg said.
