Two days of headlines about Judge Ketanji Brown Jackson’s sentencing decisions for child pornography offenders don’t appear to have derailed her path to the Supreme Court, according to Democrats who control her fate.
“You will become a member of the U.S. Supreme Court,” Sen. Patrick Leahy, Vermont Democrat, told the judge, as she faced a second round of intense questions from Republicans over her handling of cases involving people who received and, in some cases, sent child pornography.
Sen. Richard J. Durbin, overseeing Judge Jackson’s confirmation hearings in the Senate Judiciary Committee, said the intense focus on that part of the judge’s record was an attempt to tarnish a Harvard-trained judge poised to become the first Black woman to reach the high court.
“Your nomination turned out to be a testing ground for conspiracy theories and culture war theories,” the Illinois Democrat said. “I’m sorry that we have to go through this, these are not theories that are in the mainstream of America.”
His chiding didn’t derail Republicans, who for the second day in a row peppered the judge with specific cases from her eight years as a U.S. district court judge. They said in every child pornography case where she had discretion, she delivered a prison term below what the sentencing guidelines recommended and below what prosecutors sought. And they pointed to two felons who had reoffended after low sentences.
Sen. Ted Cruz, Texas Republican, pointed to one case where officers found more than 600 images of child porn on a man’s computer. Sentencing guidelines suggested the felon should go to prison for more than 151 months. Judge Jackson sentenced him to 60 months, the mandatory minimum allowed.
“You talk about it as astonishing. You nonetheless sentenced him to the very lowest possible sentence allowed under law, and what is striking and in these cases in half of them — in five — you sentenced the defendant to the absolute lowest sentence,” Mr. Cruz said.
Another case involved images of sexual abuse of toddlers. The defendant pleaded guilty and the prosecution sought more than 78 months imprisonment. The judge, while lecturing the defendant on the egregious nature of the crime, sentenced him to 28 months.
“No one case can stand in for a judge’s entire record,” she told Republicans. “I have sentenced more than 100 people in a variety of egregious circumstances. In every case, especially cases that involve the kinds of acts you are talking about, the kinds of evidence that I had to deal with as a judge, in every case I am balancing the factors that Congress has determined are appropriate.”
She flashed signs of frustration as the pornography sentencing questions piled up. After repeatedly telling senators her rulings balanced many factors only a judge in the case could know, she finally said she was done trying to convince skeptics of her decision making.
“I have answered this question many times from many senators who asked me, so I will stand on what I already said,” she said.
Democratic senators rose to her defense.
Mr. Durbin said Republicans’ claims were belied by her support from the Fraternal Order of Police and the International Association of Chiefs of Police.
And he said 80% of federal judges followed the same sentencing approach as Judge Jackson in coming in below guidelines for child pornography offenses. He also said blame for the situation actually lies with Congress, which he said has failed by not revisiting the issue of child pornography sentences in the current internet age.
“We should have stepped in at that point, but it’s a tough, hard, controversial subject and we’ve stayed away from it,” Mr. Durbin said.
Mr. Durbin also opposed a request from Republicans to get a look at probation office reports Judge Jackson said she was relying on to issue her sentences. Those reports are usually filed under seal and restricted to the lawyers and the judge involved in a case, and Mr. Durbin said it would be a bad precedent to drag them into the current battle over the judge’s nomination.
The massive focus on child pornography sentencing does not appear to have changed the math for the judge’s path to becoming a justice.
The Democratic Caucus has 50 members and they, plus the tie-breaking vote of Vice President Kamala Harris, are enough to confirm her without any Republican support.
There have been no signs of cracks in Democrats’ unity, Republicans admitted Wednesday.
“Well, right now there are no Democrats who indicated they’re willing to vote against her, so if there’s a party-line vote, they could have ram it right through,” Mr. Cruz told reporters outside the committee room. “But I think the confirmation hearing is raising some serious concerns.”
Mr. Cruz did elicit one piece of news during Wednesday’s hearing when the judge told him she would recuse herself from a looming Supreme Court case involving race preferences in Harvard University’s admissions process.
“That is my plan,” the judge said.
Judge Jackson sits on Harvard’s Board of Overseers. Supreme Court justices exercise their own discretion about when they have conflicts of interest and decide on their own whether to sit for a case.
The case, which has not been scheduled for oral arguments, involves a challenge by Asian students who say they are being denied an equal chance at admission because Harvard’s diversity policies reward Black and Hispanic applicants, to the detriment of Asian applicants.
Judge Jackson also shed some tears during the hearing when she was asked what advice she would give to young people, recalling how she had a “tough” time adjusting to Harvard University when she first arrived, having come from Miami as a public school student surrounded by many others who had a prep school background at the Ivy League school.
“The first semester I was really homesick. I was really questioning, do I belong here? Can I make it in this environment? And 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,’” the nominee said, brushing away tears. “I would tell them to persevere.”
In response to other questions, the judge said she wasn’t accusing President George W. Bush of being a war criminal when, as a public defender handling a case of a terrorism suspect detained at Guantanamo Bay, she filed a legal action accusing the then-president of war crimes.
Judge Jackson continued to rebuff attempts to weigh in on liberal activists’ push to add more justices to the Supreme Court, in a move they say is necessary to water down the impact of President Trump’s three picks.
“It’s a political question and that is precisely why I think that I am uncomfortable speaking to it,” Judge Jackson said.
Senate Minority Leader Mitch McConnell said he was troubled by that answer.
“Many of Judge Jackson’s responses have been evasive and unclear. She has declined to address critically important questions or ameliorate real concerns,” the Kentucky Republican said.
• Mica Soellner contributed to this report.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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