Ketanji Brown Jackson's confirmation hearing: Day 2

Facing GOP skepticism for not aligning herself with a specific judicial philosophy,  Ketanji Brown Jackson gave new details about the way she approaches her job and the "methodology" she uses for deciding a case.

"I am acutely aware that as a judge in our system I have limited power and I am trying in every case to stay in my lane," she said.

The three-step process she described involved clearing her mind of any preconceived notions about the case, receiving the various inputs — the written briefs, the factual record, the hearings — she'll need to decide a case, and embarking on an interpretation of the law that hews to "the constraints" on her role as a judge.

She said she was trying to "to figure out what the words mean as they were intended by the people who wrote them."

This description of her methodology was not enough to satisfy Republican questions about her judicial philosophy.

But what does this term mean and why has it come up so often today? It refers to the type of framework a judge uses to analyze a case of constitutional interpretation. An originalist approach, which is favored by conservatives, seeks to interpret the Constitution by how the framers would have understood the words at the time they were drafted.

Some progressives have sought to chart what has been called a "Living Constitution" approach, which seeks to interpret the general principles in the Constitution in a way that is applicable to contemporary circumstances.

Even as she answered Nebraska Republican Sen. Ben Sasse's questions about the dueling approaches, Jackson declined to explicitly align herself with one or the other, noting that constitutional interpretation did not come up every often in the cases she was deciding as a lower court judge.

Judge Ketanji Brown Jackson has been answering questions from senators for more than 12 hours on day two of her Supreme Court confirmation hearing.

Jackson has fielded questions on an array of topics from her record on crime, her judicial philosophy and her family background.

So far, she has been questioned by more than a dozen senators during today's hearing.

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.

Senate Judiciary Committee Chairman Dick Durbin told reporters as he left the confirmation hearing for the dinner break that the issue of sentencing guidelines was the responsibility of Congress and that Judge Ketanji Brown Jackson "did the right thing."

"She's doing what 80% of the judges across America do, because Congress, Congress has not done its job. That's the one thing that Republicans just won't concede," he said. 

Asked about Hawley's claim that Jackson seemed sympathetic to the defendant in the child sex abuse images case the Missouri Republican brought up, Durbin replied, "She did the right thing. It's a tough job. And under the circumstances, we didn't help. Congress dropped the ball, still has for 15 years plus."

"So you know, I don't think they'll ever concede that point. But she's not alone. And she's certainly not unique. 80% of the judges across America are going exactly through the same thing that she's gone through," he added.

On whether Hawley's line of questioning would affect Republican swing votes, Durbin said, "No, I don't think it will change a single Republican vote."

After using it for most of the day as a refrain on several occasions to describe how she approaches her job as a judge, Judge Ketanji Brown Jackson — in response to a question from Louisiana GOP Sen. John Kennedy — explained what she means when she says that she seeks to "stay in her lane."

Jackson has used the phrase multiple times in the hearing, starting in the early question she got about her methodology as a judge, as well as when she explained why she wouldn't answer questions about court packing.

Given the opportunity to do so by Democratic Sen. Cory Booker, Ketanji Brown Jackson discussed her family background, at times getting emotional when speaking about the values her family instilled in her and the lessons she learned from them to press forward.

She recalled how her parents went to historically Black colleges after attending segregated lower schools, and how their “hard work” taught her “perseverance.”

“My parents moved to Washington, DC, because this is where it all started, for them, in terms of having new freedoms,” she told Booker, the committee's sole Black member,  referring to the “sea change” for African Americans when civil rights legislation passed in the 1960s.

"I was born here, on that hope and dream. I was born here with an African name that my parents gave me to, to demonstrate their pride, their pride in who they were and their pride and hope in what I could be," she continued.

Of her grandparents, she said that they were the “hardest working people I've ever known and who just got up every day, put one foot after the other and provided for their families and made sure that their children went to college, even though they never had those opportunities.”

She said that in this “historic moment” of her Supreme Court nomination she reflects on them and that “I stand on the shoulders of people from that generation.”

"And I focus at times on my faith when I'm going through hard times. Those are the kinds of things that I learned from my grandmother who used to have those family dinners and bring us all together," she told committee.

Sen. Cory Booker, a Democrat from New Jersey, praised Judge Ketanji Brown Jackson's background and record during today's hearing.

Booker noted that Jackson's nomination is supported by many groups including law enforcement agencies and Republican and Democrat judges. He said that he "trusts" Jackson with the the safety of his family and state.

The Senate Judiciary Committee is taking a break for dinner.

The following senators are expected to question Supreme Court nominee Judge Ketanji Brown Jackson next in this order:

Here are key moments from today's hearing so far:

Jackson's record on crime: Jackson was asked by Sen. Patrick Leahy, a Democrat from Vermont, about accusations that she is "soft on crime or even anti law enforcement" because she worked as a public defender during her career.

Jackson went on to say that as a lawyer and as a citizen, "I care deeply about our Constitution and the rights that make us free." 

She said that it's important to her that people are "held accountable for committing crimes, but we have to do so fairly, under our Constitution." 

On Roe v. Wade: Jackson said that the two Supreme Court decisions that secured the right to abortion for women in America are "settled law" of the court.

On representing Guantanamo detainees: Sen. Lindsey Graham, the only Republican member of the committee who voted for Ketanji Brown Jackson for the DC Circuit last year, told CNN it’s “fair to say” he sees red flags with her nomination in an interview after his first round of grilling the nominee.

He criticized her explanation of defending Guantanamo detainees as an attorney, which was the subject of a tense line of questions for Jackson.

On critical race theory: 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.

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.

Read more about the events in today's hearing here.

Supreme Court nominee Ketanji Brown Jackson was criticized by two Republican senators on Tuesday over language they claimed she had used in the past while challenging the indefinite detention of clients who were being held without charges at the Guantanamo Bay military prison.

GOP Sen. Lindsey Graham of South Carolina alleged that Jackson had gone “just too far” in, he claimed, calling the government “a war criminal in pursuing charges against a terrorist.” GOP Sen. John Cornyn of Texas asked Jackson “why in the world,” while representing a member of the Taliban, “would you call Secretary of Defense Rumsfeld and George W. Bush war criminals in a legal filing? It seems so out of character for you.”

Facts First: Both Graham and Cornyn left out important context. Specifically, neither mentioned that Jackson’s allegation of war crimes was about torture. Also, Jackson didn’t explicitly use the phrase “war criminal.”

Here’s what happened.

While serving as a federal public defender from 2005 to 2007, Jackson was assigned the cases of four detainees at Guantanamo Bay. ("Federal public defenders don't get to pick their clients," she noted during the hearing on Tuesday.) In habeas corpus petitions she filed along with a colleague in 2005 on behalf of the four clients — after the Supreme Court ruled that Guantanamo detainees could contest the legality of their detention in US federal courts — Jackson argued that the detainees had been tortured and subjected to other inhumane treatment.  

Jackson and her colleague then argued that the acts of the US “respondents” they named in their petitions – acts they described as “directing, ordering, confirming, ratifying, and/or conspiring to bring about the torture and other inhumane treatment” — "constitute war crimes and/or crimes against humanity” under the Alien Tort Statute and that they violate the Geneva Conventions.

Bush and Rumsfeld were two of the four respondents Jackson and her colleague named in each of the filings, along with two commanders at Guantanamo. However, Stephen Vladeck, a University of Texas law professor, CNN legal analyst and expert on military justice, said that since the rules for these kinds of filings essentially required the President and Secretary of Defense to be named as respondents — Jackson's filings made clear Bush and Rumsfeld were being sued in their official capacity — “it's more than a little misleading to suggest that claims in that lawsuit are necessarily claims about the named respondents personally.” 

Jackson and her colleague noted in each filing that “all references” to the actions of respondents were meant to cover actions performed by “respondents’ agents or employees, other government agents or employees or contractor employees.” A White House official said in an email on Tuesday that “Judge Jackson never filed habeas petitions that called either President Bush or Secretary Rumsfeld war criminals.”  

In her response to Graham, Jackson said she didn’t remember accusing the government of acting as a war criminal but that, in habeas petitions, she was “making allegations to preserve issues on behalf of my clients.” In response to Cornyn, she said she was making arguments on behalf of her clients, would have to take a look at the specifics of what he was talking about, and “did not intend to disparage the President or the Secretary of Defense.”

None of Jackson’s four Guantanamo clients was ever convicted. Each of them was eventually released from Guantanamo.

The Senate Judiciary Committee hearing has resumed after taking a short break.

Senators will continue to question Supreme Court nominee Judge Ketanji Brown Jackson when the hearing resumes. GOP Sen. Tom Cotton will question her next.