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
8:07 p.m. ET, March 23, 2022
Judiciary Committee to vote on Jackson nomination on April 4
From CNN's Lauren Fox and Manu Raju
The Senate Judiciary Committee will vote on Judge Ketanji Brown Jackson's Supreme Court nomination on Monday, April 4.
The panel will first consider the nomination on Monday, March 28. But that meeting will not include a vote because the minority party can ask to hold the vote over until the next meeting.
Senate Democratic leaders have said they hope to have a vote confirming Jackson before their Easter recess.
One of the tools Republicans have to stall the nomination: Boycott the committee vote on April 4 to deny a quorum and stall the nomination in committee.
But Sen. Chuck Grassley, the ranking Republican, told CNN tonight that is not in the cards.
"I haven't had one discussion with one Republican on that subject. And I get paid to do my job and that's part of my job and I intend to earn my money," Grassley said.
Also, Judiciary Chairman Dick Durbin, leaving the FBI background check meeting on Jackson, told CNN there were "no" red flags raised.
8:48 p.m. ET, March 23, 2022
Jackson to young people: "I would tell them to persevere"
From CNN's Maureen Chowdhury
Ketanji Brown Jackson reflected on her own journey to becoming a judge when Democratic Sen. Alex Padilla asked her, on behalf of young people in the country, "What do you say to some of them who may doubt that they can one day achieve the same great heights that you have."
Jackson discussed how she tries to speak to young people often and then reflected on the adversity she faced to get to where she is.
"I appreciate the opportunity to speak to young people. I appreciate it very much. I do it a lot for the reasons that you have articulated," she said. "I hope to inspire people to try to follow this path because I love this country, because I love the law, because I think it is important that we all invest in our future. And the young people are and so I want them to know that they can do and be anything."
Jackson spoke about her experience of first visiting Harvard University with her high school debate coach and then eventually attending the school. She said she was not familiar with the school or its culture initially, since she came from a vastly different background than most of her peers at the time.
"It was rough. It was different from anything I'd known there were lots of students there who were prep school kids, like my husband, who knew all about Harvard and that was not me," Jackson said.
She then mentioned how during her first semester she began to feel homesick and questioned if she belonged at the school, when a stranger gave her advice when she was walking through Harvard Yard.
"I was walking through the yard in the evening and a Black woman I did not know was passing me on the sidewalk and she looked at me and I guess she knew how I was feeling and she leaned over as we crossed and said 'Persevere,'" she said.
Jackson said that she would tell young Americans watching the hearing "to persevere."
At one point during his remarks, Booker became emotional, speaking to the historic nature of Jackson’s nomination to the Supreme Court. Jackson could be seen wiping away tears as Booker spoke about how powerful this moment was for the country in that she would be the first Black woman on the Supreme Court and then spoke of African Americans before her that have made history.
"You have earned this spot. You are worthy. You are a great American," he said.
Booker added, "You are my harbinger of hope. This country's getting better and better and better. And when that final vote happens, and you ascend onto the highest court in the land, I'm going to rejoice. And I'm going to tell you right now, the greatest country in the world, the United States of America, will be better because of you."
The committee took a 10 minute break after Booker concluded his remarks and Judge Jackson’s parents could be seen going up to hug the New Jersey Democrat.
Earlier, Booker praised Jackson's "extraordinary" demeanor in handling the questioning by certain senators with "grit and grace."
Booker called out GOP Sen. Josh Hawley specifically for his focus on a handful of child pornography cases Jackson handled.
"For now I want to discuss, discuss the claim by Sen. Josh Hawley that Judge Jackson is appallingly soft on child pornography offenders. This is the kicker here, the allegations appear meritless to the point of demagoguery. I got letters from leaders of victims rights groups, survivors of assault. All saying sort of the same thing with the National Review. Feel proud about yourself you brought together right and left in this, in this, in this calling out of people that will sit up here and try to pull out from cases and try to put themselves in a position where they're the defenders of our children, to a person who has children, to a person whose family goes out in streets and defends children. I mean, this is a new, new low," Booker said.
Booker then mentioned how this specific line of attacks was not brought up last year when Jackson was confirmed to serve on the US Court of Appeals.
"This is a new, new low and what's especially surprising about this is it didn't happen last year. You were put on a court that I'm told is considered like the second most powerful court in our land. And you were passed with bipartisan support. Nobody brought it up then. Did they not do their homework? Were they lax, did they make a mistake? I wonder as they ask you the question, do you regret? I wonder if they regret that? That they didn't bring that out? No. Why? Because it was an allegation that is meritless to the point of demagoguery."
"You are, I don't mean this in any way because I thought if anybody called me average I would, I would be upset but you are a mainstream judge. Your sentencing, I've looked at the data, falls in the mainstream on everything from child sexual assault to all the other issues that people are trying to bring up," Booker noted.
CNN's Manu Raju and Ariane De Vogue contributed to this report.
Watch the moment:
6:17 p.m. ET, March 23, 2022
What to know about the probation reports that Republicans are now seeking
From CNN's Tierney Sneed and Manu Raju
A sizable portion of Wednesday's discussion have been devoted the pre-sentencing reports from the probation office that were before Judge Ketanji Brown Jackson when she issued the child porn sentences now being critiqued by Republicans.
Jackson said that she was considering the details of those reports — and the arguments that the defendants had made about their sentences — when she issued the sentences that Republicans are now bashing for being below what prosecutors or the US sentences guidelines recommended in the cases.
What are pre-sentencing reports? Pre-sentencing reports submitted by the US probation office are usually filed under seal and only made available to the parties and the court. They include the details of the probation office’s in-depth investigation that covers the offense, the defendant and others involved in the case. The probation office also uses the reports to put forward its own sentencing recommendations. Sometimes that detail will be made public, either in the sentencing memos filed publicly in the case or in remarks during the sentencing hearing. But the reports themselves are not made accessible to the public due to the sensitive details they often contain.
The White House, according to Judiciary Chairman Dick Durbin, sought out and obtained from the court the probation recommendations from the reports the child porn cases that Republicans are now scrutinizing in Jackson’s record. In most of the cases in question, Jackson issued sentences equal to or greater than the probation office recommended, according to the numbers provided by the White House.
Ten Judiciary Committee Republicans are now demanding the pre-sentencing reports as they continue their criticism of Jackson.
Durbin said such pre-sentencing reports have “never” been asked for by the committee before because it could endanger innocent third parties. Texas GOP Sen. Ted Cruz, who authored a letter from Republican lawmakers, responded by saying they could redact names of innocent people.
But Durbin said it’s a “bridge too far” and would amount to a “fishing expedition.”
Sen. Ben Sasse was the lone GOP senator to not sign on to the request.
5:55 p.m. ET, March 23, 2022
Days of bipartisan support for Supreme Court nominees are long gone
From CNN's Manu Raju
GOP Sen. Lindsey Graham of broke ranks in the Obama era, voting for President Barack Obama's two Supreme Court nominees. Under President Joe Biden, Graham has backed scores of lower court nominees — including Ketanji Brown Jackson to the DC Circuit Court of Appeals just last year.
But now that GOP opposition is stiffening with Jackson up for a vote to sit on the Supreme Court, Graham is all but certain to vote against her nomination.
In an interview with CNN, Graham pinned the blame on Biden — first for voting to filibuster Janice Rogers Brown, a Black woman picked by George W. Bush to serve on the DC Circuit nearly two decades ago, and more recently for picking Jackson over South Carolina district court Judge Michelle Childs, whom Graham was pushing for the high court.
"He made a political decision," Graham said of Biden. "All these are political decisions. The Supreme Court pick by every President has a political calculation. He made his decision that, 'I'm not going down the consensus road. I'm going go down the base road.' I'll make my decision based on his decision."
It's almost certain that Jackson — a 51-year-old Ivy League educated judge who would be the first Black woman in history to sit on the high court and whose credentials and demeanor have been praised by both parties — won't be able to win more than a few Republican votes, meaning it could be one of the closest confirmation votes in US history.
"Things have changed so dramatically over the last 10 or 20 years," said Senate Judiciary Chairman Dick Durbin. "It's so hard to really create a bipartisan unity. I hope we can on this but as you can tell, it's going to be a struggle."
Jackson invokes Gorsuch to defend her advocacy of Guantanamo detainees
CNN's Tierney Sneed
As GOP Sen. Tom Cotton grilled Judge Ketanji Brown Jackson about the advocacy she did, as a lawyer, on behalf of Guantanamo Bay detainees, Jackson invoked the words of Justice Neil Gorsuch to explain her work on those cases.
Cotton was asking Jackson about "whether America would be safer or less safe if we released all the detainees from Guantanamo Bay."
After addressing the hypothetical question, she made an additional point about what makes the country safe.
"America would also be more safe in a situation in which all of our constitutional rights are protected. This is the way our scheme works. This is how the Constitution that we all love operates. It's about making sure that the government is doing what it's supposed to do in a time of crisis. As Justice Gorsuch said, the Constitution is not suspended in times of crisis, the government still has to follow the rules. And so criminal defense lawyers make sure that in times of crisis the government is following the rules."
Jackson's comment appears to reference a concurrence Gorsuch wrote in a case concerning California limits on indoor worship services during the Covid-19 pandemic.
"Even in times of crisis—perhaps especially in times of crisis — we have a duty to hold governments to the Constitution," Gorsuch wrote.
6:08 p.m. ET, March 23, 2022
Jackson pushes back on Republicans’ focus on "small subset" of rulings during SCOTUS hearing
From CNN's Tierney Sneed
Judge Ketanji Brown Jackson had a sharp response to a question from GOP Sen. Josh Hawley asking her if she regretted the three-month sentence she issued in a child porn case where prosecutors were seeking two years.
"Senator, 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 said.
She added that she was talking about the seven specific cases that Republicans have singled out, and that she has other cases where she's sentenced people to 25 or 30 years.
"No one case, Senator, can stand in for judging an entire record," she said.
The aggressive questioning she got from Hawley on Wednesday came after Jackson faced interruptions and other pointed tactics from his fellow committee Republicans.
Sen. Lindsey Graham repeatedly interjected as tried to answer his questions, prompted criticism from Democrats on the committee. Sen. Ted Cruz also would not let Jackson finish her responses to his inquiries and on several occasions accused her of not answering her questions.
"I've said what I'm going to say about these cases, no one case can stand in for a judge's entire record because... " Jackson started to say before Cruz cut in at one point.
"Would you please let her respond?" Durbin said.
"No, not if she's not gonna answer," Cruz shot back, and the committee members squabbled for several more exchanges.
"Senator, I didn't say I'm not going to answer that, my answer is..." Jackson started to say as Cruz continued to talk over her.
See the exchange between Sen. Josh Hawley and Judge Ketanji Brown Jackson:
5:23 p.m. ET, March 23, 2022
Analysis: GOP questions reveal the bad-faith scrutiny reserved for Black nominees
Some Republicans, lacking a coherent strategy, are pressing Judge Ketanji Brown Jackson for her views on The 1619 Project and the children's book "Antiracist Baby" (because "critical race theory"), though neither has anything to do with the job she's being considered for.
Others are trying with great effort to cast the nominee as weak on crime by distorting her past work defending Guantanamo Bay detainees and her sentencing in child pornography cases.
This wafer-thin opposition is revealing.
To use an observation from Connecticut Sen. Richard Blumenthal, a Democrat, the attacks on Tuesday were nothing more than "straw men, worn talking points and imagined grievances" that made clear that Republicans didn't have any real criticisms of Jackson, whom the American Bar Association rated "well qualified" to serve on the court. All GOP senators had were tired complaints designed to animate their base.
The 1619 Project and critical race theory
Some Republicans on Tuesday seemed determined to deflect from Jackson's record.
Take Texas Sen. Ted Cruz, for instance. He spent several minutes of his questioning time not talking about Jackson but instead impugning Nikole Hannah-Jones, a New York Times Magazine writer and the creator of The 1619 Project, which has become a lightning rod for the anger of the political right. Then, he leaped to CRT and rifled through children's books that he said espouse the law school framework.
"Do you agree with this book ("Antiracist Baby") that is being taught to kids that babies are racist?" Cruz asked, without any detectable irony.
Continuing after a sigh and a pause, Jackson refused to spar over racist babies and insisted on discussing legal issues.
"Senator, I have not reviewed any of those books, any of those ideas," she said. "They don't come up in my work as a judge, which I'm respectfully here to address."
Later, Tennessee Sen. Marsha Blackburn revisited CRT, saying that Jackson ought to give parents the right to prohibit the concept from being taught in public school classrooms.
"It is important to them to have a Supreme Court that is going to protect parental rights to teach these children as parents see fit to have their children taught," Blackburn said.
In important ways, avoiding conversations about anything relevant to Jackson seemed to be the point on Tuesday.
"In lieu of taking Jackson's sterling record seriously, opponents have opted for deflection," Slate's Dahlia Lithwick recently wrote. "They don't like court expansion. They don't like the Sentencing Commission. They don't like lawyers who defended detainees at Guantanamo Bay. But these aren't actually complaints about Jackson or her qualifications. They're rehashed boilerplate complaints about all Democrats."
For weeks, Republicans have seemed uninterested in engaging with Jackson's record. Presumably, that's because they know that their attacks hold no merit and that there's little they can do to thwart her from being confirmed. So, they're using the hearings to prepare for something much less settled: the midterm election cycle.
"Soft on crime"
When they weren't preoccupied with Democrats' treatment of Brett Kavanaugh – who four years ago was accused of sexual assault before he was confirmed to a lifetime appointment on the country's highest court —Republicans on Tuesday and Wednesday were obsessed with trying to portray Jackson as "soft on crime."
For instance, South Carolina Sen. Lindsey Graham and Texas Sen. John Cornyn expressed concerns over the nominee's advocacy for Guantanamo Bay detainees while she served as a federal public defender and worked at a private law firm. Graham went so far as to claim that Jackson's advocacy jeopardized national security.
"I'm suggesting the system has failed miserably and advocates to change the system like she was advocating would destroy our ability to protect our country," Graham said, before theatrically leaving the room.
Yet what such criticism downplayed was the fact that Jackson was merely following the Constitution that Republicans enjoy showering with pious praise.
"She was meeting a minimal constitutional requirement: providing defense to those who are in the criminal justice system and who are unable to afford defense," Melissa Murray, a professor at New York University School of Law, told CNN. "To me, that suggests fidelity to the rule of law, not necessarily soft on crime."
Cruz brought up the case, noting he and the judge are both alums of the university. She is also on its board of overseers, as Cruz noted he asked if she intends to recuse from the case if confirmed.
The Harvard case is one of two affirmative cases the Supreme Court is hearing next term. The second case is a challenge to the University of North Carolina's affirmative action program. Jackson did not comment on that case.
As things stand, the Supreme Court consolidated the two cases concerning policies at Harvard and the University of North Carolina. But the court could now decouple the cases so that, if confirmed, Jackson could weigh in on the issue through the North Carolina dispute.
High court conservatives have increasingly cast aside decades-old decisions, and their acceptance of the appeals immediately throws in doubt precedents from 1978 and 2003 that let colleges consider students' race to enhance campus diversity and the educational experience, CNN's Joan Biskupic wrote earlier this year. Lower federal courts had sided with Harvard and the University of North Carolina.
The ethics concerns about Jackson's potential participation in the Harvard case centered specifically on her presence on its board – and not because she attended the university as both an undergraduate and law student. Three of the justices Jackson will join if confirmed – Chief Justice John Roberts, Justice Elena Kagan and Justice Neil Gorsuch — attended Harvard Law, as did Justice Stephen Breyer, whom Jackson as been selected to replace.
Jackson's presence on Harvard's board may have given her a view into the discovery and litigation strategy in the case, as attorney and former Justice Department spokesperson Sarah Isgur noted on Twitter.
Nevertheless, some experts on legal ethics did not believe that Jackson had to recuse herself from the Harvard case depending on her involvement on the board.
“Unless she took a position on the Harvard policy as a member of the Board or in support of candidates for admission, she would not be recused” Stephen Gillers of NYU School of Law told CNN last month. “ Merely having been a member of the Board is not enough to require recusal,” he said.