Republicans on the Senate Judiciary Committee appeared disinterested in grappling with the judiciary’s role in imposing sentences on convicted criminals as they spent most of Wednesday’s confirmation hearing for Supreme Court nominee Ketanji Brown Jackson badgering the Harvard-educated jurist about matters ranging from a prior confirmation hearing four years ago, to the same series of child sex abuse image cases that dominated the previous day’s questioning.
Judiciary Committee Chairman Dick Durbin, an Illinois Democrat, noted his GOP colleagues’ aberrant conduct as he opened Wednesday’s session, the third of an expected four-day hearing for Ms Jackson, who currently serves as a judge on the DC Circuit Court of Appeals.
“For many of the senators, yesterday was an opportunity to showcase talking points for the November election,” said Mr Durbin, who lamented how his colleagues on the other side of the aisle had turned her historic nomination for the nation’s court into “a testing ground for conspiracy theories and culture war theories”.
A group of GOP senators – led by Missouri senator and possible 2024 presidential hopeful Josh Hawley – have repeatedly accused Ms Jackson, who served as a district court judge from 2013 to 2021, of having a soft spot for paedophiles because she routinely followed the practice of most US jurists by sentencing child sex abuse image defendants for less than the recommended maximums.
But if the Illinois senator thought his admonition would have any impact on how proceedings unfolded on Wednesday, he was sorely mistaken.
Within an hour, his colleagues on the opposite side of the aisle were relitigating many of the same issues they’d spent the previous day focussing on.
South Carolina Senator Lindsey Graham, who used his 30 minutes of questioning on Tuesday to complain about how Ms Jackson’s nomination was supported by liberal groups that had called on President Joe Biden to select her instead of South Carolina judge Michelle Childs, took his second opportunity to ask questions as a chance to complain about how Democrats treated Supreme Court Justice Brett Kavanaugh during his 2018 confirmation hearing.
Mr Graham was midway through his allotted time to question Ms Jackson when he went on a tangent about how “one thing that won’t happen” to her would be him turning a hypothetical letter accusing her of wrongdoing over to Judiciary Committee chairman Dick Durbin just before the close of the hearings.
“How would you feel about that? “ he asked.
The Harvard Law graduate replied that she was not sure she understood the context of the question, at which point Mr Graham asked her if she had watched Mr Kavanaugh’s contentions confirmation hearings in late 2018.
At that point, Mr Durbin interjected to note that Mr Graham’s time had expired. The South Carolina Republican then complained that Ms Jackson had “filibustered” every question he had asked her.
After a contentious exchange between the two senators, Ms Jackson finally answered Mr Graham, telling him she had “no comment on what procedures took place in this body”.
The committee’s longest-serving member, Democratic Senator Patrick Leahy of Vermont, was so incensed by his colleague’s treatment of Ms Jackson that he briefly left the hearing in anger, telling reporters Mr Graham’s actions had made Wednesday “a sad day” in the upper chamber’s history.
Other Republicans continued to harp on Ms Jackson’s record as a district judge, raising complaints about her treatment of child sex abuse image defendants. The White House on Tuesday hit back against Mr Hawley’s questioning, calling it a “QAnon-signaling smear”. The QAnon conspiracy theory contends that a secret cabal of paedophiles controls the US government, press, and other institutions.
Senators have complained that Judge Jackson’s sentences for several child sex abuse image defendants were below the advisory federal sentencing guidelines and below what prosecutors had asked for.
To each, Ms Jackson tried to explain that federal judges do not simply follow the guidelines as a rote matter, nor do they only heed arguments offered by the government at sentencing.
Additionally, she explained that the federal guidelines for such defendants were set when child sex abuse image cases were crimes mostly committed with paper and photographs and distributed through the mail and other physical channels, rather than over the internet with computers as is mostly the case today.
She also said her sentences in those cases were based off of pre-sentencing reports written by federal probation officers and filed with courts under seal.
One GOP senator, Ted Cruz of Texas, repeatedly badgered her about a series of cases which he said ended with “very, very low sentences”.
When the judge tried to interject by saying that “no one case” can represent a judge’s entire record, Mr Cruz repeatedly stopped her to continue shouting after his time for questions had ended, leading Mr Durbin to bang his gavel in frustration.
“At some point, you have to follow the rules,” the chairman said.
Mr Cruz relented, but he later began interrupting Hawaii senator Mazie Hirono to demand a letter be entered into the record in which he and nine other colleagues were asking Mr Durbin to obtain the pre-sentencing reports at issue.
After reviewing the letter, Mr Durbin said he would not endorse such a step because the pre-sentencing reports were replete with personal details that could put crime victims at risk.
He said it was unlikely that the reports would change the minds of those GOP senators who were now demanding them, and warned them of pursuing them further.
“I don't believe these pre-sentencing reports are going to change anyone's disposition of how they're going to vote on this issue. And I do not want it weighing on my conscience that I gave the green light to release this information so that it might endanger the lives of innocent victims,” he said.
“I'm sorry, that's a bridge too far for me. I think the issue before us on sentencing you each had a chance to hear plenty of testimony on it. And I believe this should be taken up with the individual caucuses on both sides if you wish. But to me, it's gone way too far — way too far. I don't want it on my conscience”.
