COMPASS: Supreme Court confirmation hearings begin for Judge Ketanji Brown Jackson

March 21st, 2022

Good afternoon from Capitol Hill. DC’s cherry blossoms are peeking and, according to the National Park Service, a few days away from peaking. If you want to give yourself a slice of spring from your desk, the Bloom Cam is back with a bird’s eye view from the top of the Mandarin Oriental hotel.

The House is out of session this week. In the Senate, all eyes are on the Supreme Court confirmation hearings for Ketanji Brown Jackson which began this morning at 11a. Today’s portion is expected to be low-key, featuring opening statements from members of the Judiciary Committee, introductions of the nominee from former D.C. Circuit Court of Appeals judge Thomas Griffith as well as from a former classmate of Judge Jackson. We will also hear an opening statement from Judge Jackson herself.

The corporate press is still sticking with the narrative that this is a “slam dunk” nomination which “won’t change the ideological makeup of the Court” and where “no legitimate concerns have been raised” about Judge Jackson’s legal career.

But of course, as we’ve seen time and time again (most recently with the New York Times being forced to grudgingly confirm the veracity of Hunter Biden’s laptop and the information contained therein), the corporate press misleads and disassembles, and that’s only when they aren’t flat out lying.

Last week, Sen. Josh Hawley (R-Mo.), a member of the Senate’s Judiciary Committee, pointed to concerning patterns in Judge Jackson’s legal record as it relates to sentencing for pornography and predation – specifically sentencing for posessision and distribution of child pornography. Time and time again, Judge Jackson appeared to depart from the government guidelines on sentencing and assign much lower sentences – including, for example, in cases where a man crossed state lines with the intent to harm, and a case involving a father abusing his 10 year old daughter.

Democrats and their allies in the corporate press have responded as you’d expect. Sen. Dick Durbin (D-Illinois), chairman of the Senate Judiciary Committee, labeled the concerns “outrageous” and suggested they are disrespectful. The Washington Post predictably responded with a “fact check” dismissing Sen. Hawley’s research with three pinocchios.

Even Andy McCarthy at National Review appears to have bought their line, arguing that there is a distinct difference between those criminals who produce child pornography and those who distribute it, and that in his view, Judge Jackson’s support for “eliminating the existing mandatory-minimum sentences for first-time offenders who receive or distribute child pornography” are “not only mainstream; they are correct in my view.” His article was used by Senate Democrats to defend Judge Jackson at the opening of her confirmation hearing this morning.

McCarthy doesn’t distinguish between age or severity of the crime, just “production” versus “distribution,” and glossing over that distinction belies how and in which cases Judge Jackson departed from the guidelines. For example, in a case involving a criminal possessing thousands of images of child porn with an intent to travel across state lines to abuse a 9-year old girl, the sentencing guidelines called for a sentence of 97 to 121 months. Judge Jackson’s sentence was 57 months.

In another case, a sex offender distributed more than 102 child porn videos, and sent lewd pictures of his own 10-year-old daughter. The guidelines recommended 97 to 121 months. Judge Jackson gave him 71 months. Hawley’s Twitter thread cites more examples.

What Sen. Hawley has uncovered is a pattern of ideology from Judge Jackson which suggests the “light on child porn” approach is fundamental to her judicial philosophy – beginning as a law student, then as a form of advocacy when she served on the U.S. Sentencing Commission, and later, as a judge.

This critique isn’t personal, it’s not a slanderous accusation of gang rape (as Democrats hurled at Justice Brett Kavanaugh) or a malicious attack on the nominee for adopting children of a different race (as Democrats flung at Justice Amy Coney Barrett). Rather, it is squarely in the lane of jurisprudential analysis. This is exactly what senators should be doing with regard to the record of a judge who will receive a lifetime appointment on the country’s highest court.

Moreover, as the Sentencing Commission continues to withhold a portion of Judge Jackson’s records, refusing to turn them over to the Judiciary Committee, these claims should be thoughtfully interrogated, not lightly dismissed. According to Sen. Chuck Grassley, the White House has withheld approximately 48,000 documents related to Judge Jackson’s tenure.

Senator Mike Lee (R-Utah) has echoed Sen. Hawley’s request for the records, as has Sen. Chuck Grassley, the lead Republican on the Senate Judiciary Committee. Even Sen. Ben Sasse (R-Neb.) has called the patterns in Judge Jackson’s record “troubling.” For his part, Sen. Hawley has responded to the Washington Post’s “fact check” here.

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One More Thing…

Justice Clarence Thomas was hospitalized over the weekend with flu-like symptoms. According to the Supreme Court press office, he is recovering well and is likely to be discharged in short order. Please join us in saying a prayer for the speedy recovery of Justice Thomas, one of the greatest living Americans.