THE HEARING OF JUDGE KETANJI BROWN JACKSON:  PART I

 

                         …Senator Josh Hawley (R-Mo) was a real pain toward the judge

 

The GOP’s attempt to mar the judge’s record is not going well

 

On March 22, Supreme Court nominee Judge Ketanji Brown Jackson refuted attacks from Sen. Josh Hawley (R-Mo.) on her sentencing record on child-sex offenders.

It is the most scurrilous claim against Jackson: That as a federal judge, she has been weak on sentencing child-porn predators. Sen. Josh Hawley (R-Mo.) had been the primary driver of these claims, taking her words and sentences out of context to do it, but it became a dominant theme of questioning from Republicans throughout the day.

In the first minutes of the hearing, the top Democrat on the committee, Chairman Richard Durbin (D-Ill.), walked through Republicans’ various criticism of Jackson, and he spent a fair amount of time on this issue.

“As a mother and a judge who has had to deal with these cases, I was thinking that nothing could be further from the truth,” Jackson said of Hawley’s accusations.

She recounted how, when sentencing a weeping defendant to prison, she shared the experience of one victim of child pornography who was so paralyzed by what happened to her that she couldn’t leave her house.

“I tell that story to every child porn defendant as part of my sentencings, so that they understand what they have done,” she said. “I say to them, that there’s only a market for this kind of material because there are lookers, and that you are contributing to child sex abuse. And then I impose a significant sentence and all of the additional restraints that are available in the law.”

Jackson has played a prominent role in the legal debate over how sentencing guidelines should treat people who create these images versus those who possess them. Jackson tried to get at that nuance: “Courts are adjusting their sentences in order to change for the circumstances,” she said, “but it says nothing about the court’s views of the seriousness of these events.”

Jackson’s sentences in these cases have been squarely in the realm of other judges’ sentences, and Durbin came armed with an example of a Republican-supported judge in Missouri, Hawley’s home state, who gave a sentence in a child porn case that was shorter than what federal guidelines recommended.

Later, Sen. Mike Lee (R-Utah) pressed Jackson on her work on a federal sentencing commission in the Obama era. He asked why the commission had concerns that sentencing guidelines were too severe for some offenders now that technology made it easier to get ahold of these images.

“The fact that it’s easier to commit the offense shouldn’t diminish the severity of the punishment, should it?” he asked. “I mean, any more than the more widespread availability of certain drugs, the more widespread availability of certain weapons might.” Why, Lee asked, was this context different?

Judge Jackson did not directly answer that question. She simply said the commission gathered data and research “to figure out how crimes are committed and what gradations should matter.”

When Mike Lee asked about child pornography convictions where Jackson, as a judge, had departed from sentencing guidelines, she emphasized that in many of these cases, the government had asked for a sentence below the guidelines.

Under nonstop questioning about this from Hawley, she explained that jail time is just one aspect of how these defendants are punished. Some, she said, have restraints on how they can use a computer or go near children, sometimes for decades.

And she challenged Hawley to show that she is somehow more lenient to these offenders than other judges. “If you were to look at the greater body of not only my more than one hundred 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, attempting to take into account all of the relevant factors and do justice individually in each case,” she said.

Jackson would be the first justice in decades to have experience defending people accused of crimes, though the court regularly hears cases in which convicted criminals’ lives are in their hands. (Normally, presidents pick people who have experience on the opposite side of the courtroom as prosecutors.)

Republicans have used her relatively unusual background, plus the fact that liberal groups support Jackson, to argue that she is soft on crime. It is a potentially potent political attack, given that Republicans see rising crime rates across the nation as a major midterm issue.

Jackson, led by Democratic senators, spent a good chunk of her morning explaining what a public defender is, her work defending Guantánamo Bay detainees and, notably, how she appreciates the role of police.

“Federal public defenders don’t get to pick their clients,” she said of her job representing people who are charged with a crime and can’t afford their own lawyer. “They have to represent whoever comes in, and it’s a service.”

She said the role gave her empathy later on, when sentencing people convicted of a crime. As a public defender, she had observed how little defendants understand the criminal justice process, and as a result, “tend to be bitter and feel as through the justice system has wronged them.”

So as a judge, she took time to tell defendants what was happening and explain the impact their actions had on society. “And I don’t know that I would have done that if I had not been a criminal defense lawyer,” she said.

Then she pointedly discussed family members who have served as police officers, including an uncle who became police chief in Miami, and who have been in the line of fire. “So crime and the effects on the community and the need for law enforcement, those are not abstract concepts or political slogans to me,” she said.

As far as her work defending Guantánamo Bay detainees, she’s been asked in a previous confirmation hearing if she ever defended a terrorist.

As The Post’s Ann Marimow explains, when Jackson was a public defender, she got tapped to help challenge the federal government holding “enemy combatants” after the Sept. 11, 2001, terrorist attacks. Often it was untread ground in criminal law. “Lawyers were trying to help the court figure out what the executive’s power was in this circumstance,” she said, emphasizing these detainees had a constitutional right to representation.

But she also tried to distance herself from her work in that area, which continued when she worked in private practice.

“My responsibility was to make my client’s arguments,” she said, of writing a brief for the libertarian Cato Institute and others, arguing that the government shouldn’t have the ability to hold an enemy combatant indefinitely. She explicitly said that doesn’t represent her own views.

I will follow with Part II of the hearing tomorrow.

Copyright G. Ater 2022