On the third day of Ketanji Brown Jackson’s Senate confirmation hearing to serve on the Supreme Court, the judge faced more questions about her rulings in child pornography cases as well as the First Amendment and other matters.
On Feb. 25, President Joe Biden nominated Jackson, a judge on the D.C. Circuit Court of Appeals since June who previously sat on the D.C. District Court, to succeed Justice Stephen Breyer on the high court.
Here are some of the biggest moments from her appearance for more than nine hours Wednesday before the Senate Judiciary Committee.
1. ‘Supervise Computer Habits vs. Putting Them in Jail?’
Sen. Lindsey Graham, R-S.C., pushed Jackson on why she seemed to think that obtaining child pornography from the internet warranted a ligher sentence than obtaining it through the mail.
Jackson countered that the sentencing isn’t just prison time, but includes supervised release that restricts use of the internet by those convicted in connection with child pornography.
“Senator, with respect to the computer, one of the most effective deterrents is one that I imposed in every case, that judges across the country impose in every case, which is substantial supervision,” Jackson said.
Her reply wasn’t satisfactory to Graham.
“Wait, you think it is a bigger deterrent to take somebody who is on a computer looking at sexual images of children in the most disgusting way, is to supervise their computer habits versus putting them in jail?” Graham asked.
Jackson replied: “No, Senator. I didn’t say ‘versus.’”
Graham shot back: “That’s exactly what you said.”
He added: “The best way to deter these people from getting on a computer and viewing thousands and hundreds, and over time maybe millions, … of children being exploited and abused every time somebody clicks on is to put their ass in jail, not supervise their computer usage.”
Last week, Sen. Josh Hawley, R-Mo., flagged seven cases in which Jackson issued sentences in child porn cases that were shorter than outlined in federal guidelines or requested by a prosecutor.
Graham and Jackson continued their exchange, with Jackson arguing that the law and sentencing guidelines haven’t caught up with technology.
“We are going to treat someone who has distributed 1,000 [images] a lot worse because that shows that this person is really engaged in this really horrible behavior,” Jackson said. “In comes the internet. On the internet, with one click you can receive, you can distribute tens of thousands. You can be doing this for 15 minutes and all of a sudden, you are looking at 30, 40, 50 years in prison.”
Graham responded: “Good, good.”
“I hope you go to jail for 50 years if you are on the internet trolling for images of children and sexual exploitation,” the South Carolina Republican added. “So you don’t think that’s a bad thing. I think that’s horrible.”
Several Democrats on the committee argued that Jackson’s sentences in child pornography cases were consistent with those of other federal judges, including those appointed by Republican presidents.
2. ‘If I Decide … I Am a Woman’
Responding to a question from Sen. Ted Cruz, R-Texas, Jackson—a member of the board of overseers at Harvard University—said she would recuse herself from an affirmative action case heading to the high court that alleges discrimination by Harvard against Asian Americans.
Cruz linked the Harvard case with Jackson’s response Tuesday when Sen. Marsha Blackburn, R-Tenn., asked whether she could define the word “woman.” Jackson responded to Blackburn: “I can’t … I’m not a biologist.”
“I think you are the only Supreme Court nominee in history who has been unable to answer the question, ‘What is a woman?’ As a judge, how would you determine if a plaintiff had Article 3 standing to challenge a gender-based rule, regulation, policy, without being able to determine what a woman was?” Cruz asked.
Jackson was more specific this time.
“I know that I’m a woman,” Jackson said. “I know that Sen. Blackburn is a woman, and the woman who I admire most in the world is in the room today, my mother.”
Cruz then asked: “Under the modern leftist sensibilities, if I decide right now that I am a woman, then, apparently, I am a woman. Does that mean I would have Article 3 standing to challenge a gender-based restriction?”
“To the extent that you are asking me who would have the ability to bring lawsuits based on gender, those kinds of issues are working their way through the courts and I’m not able to comment on them,” Jackson answered.
Cruz then asked whether someone could identify with a different ethnicity.
“If I can change my gender, if I can be a woman and then an hour later decide I’m not a woman anymore, I guess I would lose Article 3 standing. Tell me, does that same principle apply to other protected characteristics?” Cruz asked. “For example, I’m a Hispanic man. Could I decide I was an Asian man? Would I have the ability to be an Asian man and challenge Harvard’s discrimination if I made that decision?”
“You are asking me about hypotheticals,” Jackson initially replied.
But Cruz pressed: “No, I’m asking how you would assess standing if I came in and identified as an Asian man?”
So Jackson answered.
“I would assess it the way I assess other issues, which is to listen to the arguments made by the parties and consider the relevant precedents and the constitutional principles involved in making a determination,” she said.
3. Campus Cancel Culture: ‘Liberal vs. Illiberal’
Sen. Ben Sasse, R-Neb., raised what he called a “troubling pattern” at law schools.
“There is obviously a trend toward shouting down and canceling opinions that are outside the left-leaning mainstream; calls for firing professors, canceling professors, shouting down and sometimes threatening speakers who bring divergent, diverse opinions, threats to discipline fellow students,” Sasse said.
Sasse said he has talked to liberal professors who complained that the debate isn’t conservative versus liberal, “but more and more liberal versus illiberal.”
“I’d like to ask if you agree that law school students should be engaging with ideas across the political spectrum, even those they disagree with, [rather] than trying to shun those different ideas,” Sasse asked Jackson.
Jackson replied that some related cases might be working their way to the courts, so she wanted to answer carefully.
“As a general matter, law school—like many schools—is a place where ideas and perspectives are considered and in the law, as I’ve said, it’s important for the judge who is making the decision to have different arguments,” Jackson said, adding:
So one of the things that traditionally happens in law schools is that you are trained in law to make arguments that are at times not even the arguments that you personally agree with because the understanding is that in litigation, in disputes that come before the court, the court is going to want to hear different viewpoints. In that sense, the essence of legal instruction is to have different arguments being made, because that models in great part what happens in a courtroom.
Recently at Yale Law School, a conservative speaker was shouted down by law students during an event celebrating free speech.
Sasse, not satisfied, followed up by asking, “It is better to debate ideas that you disagree with than to shout them down, isn’t it?”
Jackson responded: “It is better in law schools to make sure there are ideas from all perspectives. In order to make that happen, they can’t be suppressed.”
4. ‘Hesitate to Speculate’ on Unborn Child’s Viability
Sen. John Cornyn, R-Texas, asked Jackson about abortion.
“What does viability mean with respect to an unborn child, in your understanding?” Cornyn asked.
Jackson replied: “Senator, I hesitate to speculate. I know it is a point in time the court has identified.”
Cornyn asked whether there is any suggestion that a child could live independently after 20 weeks.
Jackson replied: “Senator, I’m not a biologist. I haven’t studied this. I don’t know.”
Cornyn later asked: “So you are suggesting that in some individual case the right to an abortion could extend right up until the time the child is delivered?”
Jackson responded: “No, Senator. I’m suggesting that I’m not aware of any case that has handled the issue.”
In 2001, Jackson, as a private lawyer, co-authored an amicus brief in the case of McGuire v. Reilly before the U.S. Court of Appeals for the 1st Circuit in Boston in favor of a Massachusetts law regulating speech outside abortion clinics. The Supreme Court overturned the law as violating the First Amendment.
“It seemed as if the pro-life protesters were dangerous to women and threatening to enter the clinic,” Sen. Thom Tillis, R-N.C., said, adding, “Am I correct that because they were noisy, in-your-face protesters, they needed to be a little bit further away than people who were pro-choice advocates? The underlying law in Massachusetts was ultimately struck down by the Supreme Court. Is that correct?”
Jackson said the case came early in her career.
“The brief you are referencing is a brief I worked on right after I finished my Supreme Court clerkship when I joined a big law firm in Massachusetts,” Jackson told Tillis.
“It is a First Amendment, free speech set of arguments that the lawyers at my firm—I was on a team representing clients who wanted to make an argument about buffer zones, which at the time had not been litigated all the way to the Supreme Court,” Jackson said.
Tillis asked: “Was it a buffer zone that put pro-life and pro-choice people in the same buffer?”
Jackson said that was her recollection.
“I believe it was viewpoint neutral. It wasn’t about what people were saying. It was about clearing the path to allow people to enter the clinic,” she said.
Jackson added, “I think ultimately there was some litigation that went all the way to the Supreme Court and the court had other jurisprudence about whether buffer zones were constitutional.”
5. ‘Higher Standard of Liability for Press’
Sen. Jon Ossoff, D-Ga., asked Jackson about issues involving freedom of the press that could go before the high court.
“The question of prior restraint has been litigated. The famous case of the Pentagon Papers in the latter years of the Vietnam War,” Ossoff said. “All of us on this committee, we recognize the vital role of press freedom in ensuring the free exchange of ideas to access the truth and debate in our democracy. How will you approach cases that implicate press freedom?”
Ossoff referenced the Supreme Court’s 1971 ruling in the Pentagon Papers case.
Jackson responded by referring to the 1964 New York Times v. Sullivan case, which set the precedent in libel law that a public figure, to prevail, has to prove actual malice or reckless disregard of the truth by the news organization.
“This is another area in which there is well-established case law that supports the freedom of the press to be able to write and report,” Jackson said. “There is a general obligation of truth in terms of the press. But also a recognition that sometimes there may be things that get published that aren’t exactly accurate. So sometimes the court in New York Times v. Sullivan determined a higher standard of liability for press.”
The reference to the libel precedent could be significant, since Justices Clarence Thomas and Neil Gorsuch both have suggested that the Supreme Court take another look at New York Times v. Sullivan.
“Things that are put out in the press have to be knowingly false [for a finding of libel]. There is an actual malice test, because the court was balancing the concerns about libel, people claiming they were misrepresented in the press, with the need to allow the press to do their job,” Jackson said. “The overall understanding is that press freedom, again, is one of the First Amendment freedoms that undergird our democracy.”
6. Court-Packing and the Left
Jackson previously declined to weigh in on expanding the size of the Supreme Court beyond nine justices, a political issue of interest to many Democrats. At one point Wednesday, Jackson said she could see both sides.
“Could you briefly describe to me your perception of the argument on both sides?” Tillis asked.
Jackson responded that each side has argued against politicization of the high court.
“I’ve just heard people talking about putting more justices on the court expressing concerns that the court has become politicized, that the court has become unbalanced in terms of what people perceive the views of the justices,” Jackson said of the argument for court-packing. “I’ve heard arguments about rebalancing the court on that side.”
Of the argument against court-packing, she said: “Then there is the argument that many on the dais have stated about the inappropriateness of doing so, the concern that it might lead to some kind of war every time there is a new president adding justices to the court.”
Tillis pulled out a chart and called it “the Whitehouse format,” a reference to Sen. Sheldon Whitehouse, D-R.I., known for displaying charts during hearings that he purports reveal secret plots by “dark money” groups.
Tillis’ chart included nonprofit groups that were launched or fiscally sponsored by liberal megadonor Arabella Advisors, including the group Demand Justice.
“There is an ecosystem out there on both sides. … We’ve seen this ecosystem mobilize to support you,” Tillis said. “Judge Jackson, you said you have not had any encounter with Demand Justice. I don’t know if you’ve had any encounter with some of these [on the chart], either acronyms or abbreviated. It would be interesting if we could for the record determine if you have had any interactions?”
Jackson replied: “I have not, Senator. I have never seen most of those.”
Tillis went on to note that Demand Justice, a left-leaning legal group that since has spun off from Arabella Advisors, had a specific agenda that included packing the Supreme Court by adding justices appointed by a Democratic president.
“They have a specific plan,” he said. “Step 1, add four seats on the Supreme Court to restore balance, which by their opinion is a majority with their view and their judicial philosophy.”
The North Carolina Republican noted that Demand Justice wanted to “nuke the filibuster” in the Senate, meaning it would take only “51 votes to make a decision that could ultimately impact the courts.”
By eliminating the Senate filibuster and packing the Supreme Court, he said, “We are talking about the ultimate destruction of two institutions.”
Tillis said Jackson “could actually be there and witness this—its demise real-time if we allow the court to be packed.”
Demand Justice is a “dark money” group that clearly has influence over Democrats, he added.
“I would say that Judge Jackson and almost everyone the president vetted is on this list,” Tillis said of Demand Justice’s “short list” of Supreme Court candidates—including Jackson—that it presented to Biden.
“I think it’s intellectually dishonest to say the administration, that my colleagues on the other side of the aisle, are not influenced by this organization,” he said.
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