Ketanji Brown Jackson's confirmation hearing: Day 3

By Tierney Sneed, Maureen Chowdhury, Dan Berman, Melissa Macaya and Mike Hayes, CNN

Updated 11:18 a.m. ET, March 24, 2022
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5:23 p.m. ET, March 23, 2022

Fact check: Blackburn mischaracterizes Jackson’s words about pro-life activists 

From CNN's Daniel Dale

(Chip Somodevilla/Getty Images)
(Chip Somodevilla/Getty Images)

Late in the hearing on Tuesday, Republican Sen. Marsha Blackburn of Tennessee claimed that Supreme Court nominee Ketanji Brown Jackson had disparaged women who oppose abortion. Blackburn, however, was twisting the contents of a legal brief Jackson co-authored in 2001. 

Blackburn claimed that, when Jackson was in private practice, “You made your views on pro-life, and the pro-life movement, very clear. And in fact, you attacked pro-life women. And this was in a brief that you wrote. You described them, and I’m quoting: ‘Hostile, noisy crowd of in-your-face protesters.’ And you advocated against these women’s First Amendment right to express their sincerely held views regarding the sanctity of each individual life.”

Shortly afterward, Blackburn, who described herself as “a pro-life woman,” said she finds it “incredibly concerning” that a nominee to be a lifetime Supreme Court justice has “such a hostile view” toward pro-life sentiment. And Blackburn asked Jackson if she thinks of pro-life women at church, or even Blackburn herself, as noisy, hostile and in-your-face. 

Facts FirstBlackburn mischaracterized what this 2001 legal brief said. It did not broadly describe pro-life women as hostile, noisy or in-your-face. Rather, Jackson and her co-authors used the phrase “hostile, noisy crowd of ‘in-your-face’ protesters” specifically to describe pro-life activists who confront patients outside reproductive health clinics. The brief was written on behalf of clients who operated and supported these clinics.

The Massachusetts case was about “buffer zones” outside clinics, areas in which pro-life protesters would be prohibited from approaching patients. The brief Jackson co-authored as a young associate — along with partners at her firm – said this:

“Few American citizens who seek to exercise constitutionally protected rights must run a gauntlet through a hostile, noisy crowd of ‘in-your-face’ protesters. Still fewer citizens, when seeking medical or surgical care — particularly care involving deeply private matters — must confront a crowd swarming around them, shouting in their faces, blocking their way, and thrusting disturbing photographs and objects at them. Yet on any given day, patients of reproductive health clinics may face all of these.”

So “hostile, noisy crowd of ‘in-your-face’ protesters” was clearly not a general description of Americans who oppose abortion. 

Jackson explained to Blackburn on Tuesday that the case was about buffer zones and that she had used this language on behalf of clients.

“Senator,” she said, “I drafted a brief along with the partners in my law firm, who reviewed it, and we filed it on behalf of our client, in — to advance our clients’ arguments that they wanted to make in the case.”

5:25 p.m. ET, March 23, 2022

Senate Majority Leader Chuck Schumer is attending Jackson's hearing

From CNN's Ted Barrett, Ali Zaslav, Clare Foran and Ariane De Vogue 

(Saul Loeb/AFP/Getty Images)
(Saul Loeb/AFP/Getty Images)

Senate Majority Leader Chuck Schumer is attending Supreme Court nominee Judge Ketanji Brown Jackson's hearing in the Senate Judiciary Committee.

He is not expected to speak, but has taken a seat in the room (two rows behind the nominee) to observe. 

Schumer on Monday said that he remains confident “the Senate is on track to confirm Judge Jackson as the 116th Justice of the Supreme Court by the end of this work period," which is early April.

Yesterday, Schumer called some of his Republican colleagues “respectful” in their questioning of Jackson but told reporters that others have attacked her unfairly.

CNN's Ariane De Vogue tweeted a photo:

CNN's Lauren Fox contributed reporting to this post.

12:51 p.m. ET, March 23, 2022

Mitch McConnell criticizes Jackson's testimony

From CNN's Ted Barrett

(Drew Angerer/Getty Images)
(Drew Angerer/Getty Images)

Senate Minority Leader Mitch McConnell sharply criticized the testimony of Judge Ketanji Brown Jackson at her Supreme Court confirmation hearing, saying she was evasive on issues like court packing and her judicial philosophy and that she struggled to explain what he claimed were lenient sentences she handed down to people convicted in child pornography and drug distribution cases.  

It is highly unlikely the Senate's Republican leader would support President Biden's nominee, though he has not said so publicly.

“Judge Jackson's responses have been evasive and unclear. She's declined to address critically important questions and ameliorate real concerns. First and foremost is a simple question of court packing,” McConnell said, adding that progressive groups that support Jackson’s nomination also support expanding the court.

“The nominee made sure to quietly signal openness, openness to the radicals’ position. She told senators, she could see both sides of the court packing debate.”

On Tuesday, Jackson, just as Justice Amy Coney Barrett did during her confirmation hearing in 2020, declined to comment on the idea of court packing, or adding justices to the Supreme Court beyond the current nine, saying that's a question for Congress to consider.

"My north star is the consideration of the proper role of a judge in our constitutional scheme," Jackson said Tuesday. "In my view judges should not be speaking to political issues, and certainly not a nominee to the Supreme Court."

Read more about McConnell's standing in the GOP here:

12:40 p.m. ET, March 23, 2022

Justice Clarence Thomas misses third day of oral arguments

From CNN's Ariane de Vogue

Erin Schaff/The New York Times/Pool/AP
Erin Schaff/The New York Times/Pool/AP

As Judge Ketanji Brown Jackson's hearings continue Wednesday, news from across the street at the Supreme Court, where Justice Clarence Thomas missed a third day of oral arguments.

Thomas entered Sibley Memorial Hospital in Washington, DC, Friday after experiencing flu-like symptoms and has been treated for what a court spokesperson described as an infection.

The court announced Thomas' hospitalization on Sunday and has declined repeated requests for updates on his health since then. When asked Wednesday about his status, Patricia McCabe, the court's public information officer, said: "No update."

Chief Justice John Roberts said in open court on Wednesday, as he has done since the beginning of the week, that Thomas would read briefs and transcripts of oral arguments.

All nine justices are fully vaccinated and boosted against Covid-19.

12:33 p.m. ET, March 23, 2022

Each senator on the panel will now have 20 minutes for additional questions

Sen. Lindsey Graham questions Judge Ketanji Brown Jackson on Wednesday.
Sen. Lindsey Graham questions Judge Ketanji Brown Jackson on Wednesday. (Chip Somodevilla/Getty Images)

Each member of the Senate Judiciary Committee will now have 20 minutes each to ask additional questions to Supreme Court nominee Ketanji Brown Jackson.

GOP Sen. Lindsey Graham of South Carolina is questioning the nominee now. You can see who is on the committee here.

Earlier in today's hearing, two remaining senators from the panel — Democrat Jon Ossoff of Georgia and GOP Thom Tillis of North Carolina — had 30 minutes to ask questions as they did not question the nominee on Tuesday.

12:06 p.m. ET, March 23, 2022

Jackson: A diverse judicial branch "bolsters public confidence in our system"

From CNN's Tierney Sneed

Judge Ketanji Brown Jackson testifies on Wednesday.
Judge Ketanji Brown Jackson testifies on Wednesday. (Saul Loeb/AFP/Getty Images)

As the Senate weighs whether to make Judge Ketanji Brown Jackson the first Black female justice, she told the Judiciary Committee that a diverse judicial branch "lends and bolsters public confidence in our system."

"We have a diverse society in the United States," Jackson said. "There are people from all over who come to this great nation and make their lives and when people see that the judicial branch is comprised of a variety of people who are, have taken the oath to protect the Constitution and who are doing their best to interpret the laws consistent with that oath, it lends confidence that the rulings that the judge, that, that the court is handing down are fair and just, that everything has been considered, that no one is being excluded because of a characteristic like race or gender or anything else."

She also discussed the impact diversity on the bench has on role-modeling.

"I have been so touched by the numbers of people who've reached out to me in this period of time, to say how much it has meant to their daughters, to their sons, to the next generation, that I've been appointed, to nominated and hopefully confirmed," she said.

In a new Monmouth University survey, 69% of Americans say it's at least somewhat important for the Supreme Court to look like the racial, ethnic and gender composition of the country as a whole, with 46% saying it's very important. Read more here.

11:53 a.m. ET, March 23, 2022

Jackson calls herself the "first generation to benefit from the civil rights movement"

From CNN's Tierney Sneed

(Sarah Silbiger for CNN)
(Sarah Silbiger for CNN)

Judge Ketanji Brown Jackson recounted the childhood of parents, who attended segregated middle and high schools in Florida, and how her upbringing was like "night and day" to theirs.

"I do consider myself, having been born in 1970, to be the first generation to benefit from the civil rights movement, from the legacy of all of the work of so many people that went into changing the laws in this country so that people like me, could have an opportunity to be sitting here before you today," she said.

Watch the moment here:

5:11 p.m. ET, March 23, 2022

Here are key things to know about what happens next in the confirmation process

(Drew Angerer/Getty Images)
(Drew Angerer/Getty Images)

Supreme Court nominee Ketanji Brown Jackson is facing the final day of questioning today and the hearings will wrap up tomorrow when the American Bar Association and outside witnesses deliver testimony.

Once this week's public hearings wrap, there's a committee vote on whether to advance the nomination. And then there's a final Senate floor vote. The date for these votes have not yet been set.

Democrats can confirm Jackson to the high court on the strength of their narrow Senate majority, with 50 votes and Vice President Kamala Harris breaking a tie. The party does not need any Republican support for successful confirmation, but if any Republicans do vote to confirm, it would give the White House a chance to tout a bipartisan confirmation.

It's not yet clear, however, whether Jackson will receive any votes from Republicans.

When the Senate voted to confirm her last year to fill a vacancy on a powerful DC-based appellate court, three Republican senators voted with Democrats in favor: Sens. Lindsey Graham of South Carolina, Susan Collins of Maine and Lisa Murkowski of Alaska.

How long does it take to confirm a Supreme Court justice? The confirmation process timeline varies. For instance, with the 2020 election bearing down and the likelihood they would lose control of the Senate, Republicans pushed through Amy Coney Barrett's nomination in lightning speed — less than a month. Before that, the last nomination to proceed to confirmation in less than two months was Ruth Bader Ginsburg's back in 1993. These things usually take months.

Democrats say they hope to confirm Jackson by early April.

Read more about the Supreme Court confirmation process here.

CNN's Zachary B. Wolf, Clare Foran and Alex Rogers contributed reporting to this post.

10:56 a.m. ET, March 23, 2022

Responding to GOP suggestion of too much "empathy," Jackson says her comments to defendants were about "public safety"

From CNN's Tierney Sneed

(Chip Somodevilla/Getty Images)
(Chip Somodevilla/Getty Images)

Judge Ketanji Brown Jackson explained the way she spoke to defendants as a trial judge during sentencing, as she faces Republicans who have raised concerns about the “empathy” she has shown on the bench.

“My attempts to communicate directly with defendants is about public safety, because most of the people who are incarcerated — via the federal system and even via the state system — will come out, will be a part of our communities again,” Jackson said in response to a question from Sen. Thom Tillis, a Republican from North Carolina. “And so it is to our entire benefit, as Congress has recognized to ensure that people who come out stop committing crimes."

Jackson testified that when she was sentencing people to very long sentences, she sought to convey to the defendant that “you have to go away understanding that I am imposing consequences for your decision, your decision to engage in criminal behavior.”

She said that, as a public defender, she recognized that there were lots of defendants who didn’t take responsibility for their crimes, because “they were bitter, they were angry, they were feeling victimized because they didn't get a chance to say what they wanted to say, because nobody explained to them that drug crimes are really serious crimes. Nobody said to them, ‘Do you understand that there are children who will never have normal lives because you sold crack to their parents, and now they're in a vortex of addiction. Do you understand that Mr. Defendant?’” Jackson said.

“I was the one in my sentencing practices who explained to those things in an interest of furthering Congress's direction, that we're supposed to be sentencing people so that they can ultimately be rehabilitated to the benefit of society as a whole," the judge said.