Ketanji Brown Jackson's confirmation hearing: Day 2

By Maureen Chowdhury, Tierney Sneed, Dan Berman, Adrienne Vogt, Melissa Macaya, Meg Wagner and Mike Hayes, CNN

Updated 10:58 p.m. ET, March 22, 2022
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8:50 p.m. ET, March 22, 2022

Hawley and Jackson spar over her judgment in one particular child porn case

From CNN's Tierney Sneed

Supreme Court nominee Judge Ketanji Brown Jackson listens to Sen. Josh Hawley during her confirmation hearing Tuesday.
Supreme Court nominee Judge Ketanji Brown Jackson listens to Sen. Josh Hawley during her confirmation hearing Tuesday. (Chip Somodevilla/Getty Images)

GOP Sen. Josh Hawley focused his claims about Judge Ketanji Brown Jackson''s sentencing record in child porn cases on one particular case, known as US v. Hawkins, in which she sentenced the offender to three months.

In the 2013 case, prosecutors sought 24 months – a recommendation well below the 97-121 month guidelines in the case. Jackson and her supporters have defended her approach to these cases by noting that courts have discretion to deviate from the guidelines, In these types of cases in particular – because the many judges view the guidelines as out of date – sentences that vary from the guidelines are quite common, and CNN review showed that Jackson's approach to these kinds of cases did not make her an outlier among judges.

"If you were to look at the greater body of not only my more than 100 sentences, but also the sentences of other judges in my district and nationwide, you would see a very similar exercise of attempting to do what it is that judges do," Jackson told Hawley.

Throughout the questioning, however, Hawley sought to keep the discussion zeroed in on the specifics of the Hawkins case, rather than how Jackson’s record fits into the bigger picture. He rattled off the amount of materials the offender was found to have possessed and went into detail about the graphic acts some of those materials depicted. He also read her a quote of Jackson's he said he pulled from the sentencing hearing transcript. He noted government court filings describing videos where the victims were as young as eight, 11 and 12 years old.

In his account, she said at the hearing it was not appropriate to increase the penalty on the basis of the images of prepubescent victims, because those “circumstances exist in many cases, if not most, and don’t signal an especially heinous or egregious child pornography offense.

To Jackson, Hawley said he was having “a hard time wrapping my head” that comment, given the facts of the case. Stressing that all cases of this kind are “heinous” and “egregious."

Jackson defended her judgment. From her recollection of the case, she said the defendant had just graduated high school and that some of the materials involved older teenage victims who were close in age to the offender.

“There is discretion at sentencing and when you look at the sentencing statutes, Congress has given the judges not only the discretion to make the decision, but require judges to do so on an individualized basis, taking into account not only the guidelines but also various factors including the age of the defendant, the circumstances of the defendant, the terrible nature of the crime, the harm to the victims,” Jackson said.

She later noted that prosecutors and probation offices are also deviating from the guidelines in their recommendations.

“This is a particular area where the commission has seen an enormous amount of disparity and is in fact asked Congress to come back and address, to help judges who are looking at these cases to be able to rely on the guidelines,” she said, prompting Hawley to respond: “Which Congress has declined to do.”

“Senator, in that case, we have the statute that Congress has enacted concerning penalties and we have judges who are doing their level best to make sure that people are held accountable as they need to be in our society in a fair and just way,” Jackson said.

5:46 p.m. ET, March 22, 2022

CNN's Abby Phillip on Cruz-Jackson exchange: Her pause "really said it all"

Analysis by CNN's Abby Phillip

Sen. Ted Cruz holds up a book as he questions Supreme Court nominee Judge Ketanji Brown Jackson during her confirmation hearing.
Sen. Ted Cruz holds up a book as he questions Supreme Court nominee Judge Ketanji Brown Jackson during her confirmation hearing. (Win McNamee/Getty Images)

During Judge Ketanji Brown Jackson's Supreme Court confirmation hearing today, Republican Sen. Ted Cruz pressed Jackson about critical race theory.

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."

The GOP senator grilled Jackson on books about racism and critical race theory that are available at Georgetown Day School, an institution where she's a board member. 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.

CNN's Abby Phillip broke down the moment when Cruz pressed Jackson on the children's books and noted that Jackson's "pause at the beginning of her answer really said it all, in terms of the level of frustration that it seemed that she had, even while she was answering the questions in an incredibly... judicious manner."

Phillip continued, "This is exactly the kind of thing that I think some Republicans have been concerned about because one of the problems with Sen. Cruz's questioning of her along these lines was that he asked her about Georgetown Day School and it gave her an opportunity to explain that when she talks about social justice in relation to Georgetown Day School it is because that school was founded explicitly to integrate schools during a time when the law required that public schools be racially segregated. So, he kind of teed up a softball for her to really sort of undermine this whole avenue of questioning."

Watch Phillip's full analysis here:

5:11 p.m. ET, March 22, 2022

How senators on the Judiciary Committee voted on Judge Jackson before

Supreme Court nominee Judge Ketanji Brown Jackson has already been confirmed by the Senate three times for prior roles.

As lawmakers continue to question her in the Senate Judiciary Committee today, they have been providing some hints on how they may vote.

Jackson, 51, currently sits on DC's federal appellate court and had been considered the front-runner for the vacancy since Justice Stephen Breyer announced his retirement in January.

President Biden, who vowed during the 2020 campaign to select a Black woman to the Supreme Court should a vacancy arise, had already elevated Jackson once, appointing her last year to the appeals court in DC, which is considered the second most powerful federal court in the country.

Because of that appellate appointment, she's already been through a vetting process that included an interview with the President himself. Last June, the Senate confirmed Jackson by a 53-44 vote.

Here's how lawmakers on the committee voted then:

For her Supreme Court confirmation this time around, no Democratic senators have signaled they will oppose Jackson, and some Republicans have expressed openness to supporting her.

In the 50-50 Senate, Vice President Kamala Harris could break a tied vote and confirm Jackson to the Supreme Court.

CNN's Shawna Mizelle and Alex Rogers contributed reporting to this post.

4:41 p.m. ET, March 22, 2022

We're at the halfway point in today's questioning from senators. Here's a recap of what has happened so far. 

US Supreme Court nominee Judge Ketanji Brown Jackson responds during her confirmation hearing before the Senate Judiciary Committee.
US Supreme Court nominee Judge Ketanji Brown Jackson responds during her confirmation hearing before the Senate Judiciary Committee. (Kevin Dietsch/Getty Images)

We are now at the halfway point of today's questioning of Supreme Court nominee Ketanji Brown Jackson in the Senate Judiciary Committee.

The second day of her confirmation hearings kicked off at 9 a.m. ET, and Jackson has been defending her judicial record as she's faced intense questioning from Republican senators.

Republicans have attempted to portray the nominee as weak on crime by zeroing in on some of her past defense work and have raised questions over her judicial philosophy as they warn against activism, and prescribing policy outcomes, from the bench.

Jackson addressed and disputed those criticisms by stressing her concern for public safety and the rule of law, both as a judge and an American. She argued that she approaches her work in an impartial way and that personal opinions do not play a role.

When pressed by Sen. Chuck Grassley of Iowa, who serves as the top Republican on the Judiciary Committee, Jackson sidestepped a question related to whether she supported expanding the Supreme Court to include more than nine justices.

"It is a policy question for Congress," she said. "I am particularly mindful of not speaking to policy issues because I am so committed to staying in my lane."

Democrats have so far used the hearings to praise Brown — who would be the first Black woman to serve as a Supreme Court justice — as an exceptionally qualified, trail-blazing nominee whose depth and breadth of experience, including as a federal public defender, would add a valuable and unique perspective to the bench.

Read about more key moments from today's hearing so far here.

GOP Sen. Ben Sasse is questioning Jackson right now, and here's who will question her next:

  • Democratic Sen. Richard Blumenthal
  • GOP Sen. Josh Hawley
  • Democratic Sen. Mazie Hirono
  • GOP Sen. Tom Cotton
  • Democratic Sen. Cory Booker
  • GOP Sen. John Kennedy
  • Democratic Sen. Alex Padilla
  • GOP Sen. Thom Tillis
  • Democratic Sen. Jon Ossoff
  • GOP Sen. Marsha Blackburn

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.

CNN's Clare Foran contributed reporting to this post.

4:11 p.m. ET, March 22, 2022

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.
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.
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)
(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.
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.

Read more about this here: