Supreme Court nominee Judge Ketanji Brown Jackson's judicial philosophy came under the spotlight Tuesday as Republicans demand a clearer view into how Jackson would handle cases as a justice.
The Tuesday hearing also included discussion of court-packing, which Jackson refused to weigh in on. It included Republicans airing grievances related to past judicial confirmations. And it featured Jackson's response to questions raised by Sen. Josh Hawley, R-Mo., on how Jackson sentenced child porn cases as a trial judge.
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Multiple Republican senators raised the issue of Jackson's judicial philosophy in the first day of Jackson's hearings Monday. Sen. Susan Collins, R-Maine, widely considered one of the most likely GOP "yea" votes for Jackson, also told Fox News she "did not get enough information about her judicial philosophy" in a meeting earlier last month.
Supreme Court nominee Ketanji Brown Jackson testifies during her Senate Judiciary Committee confirmation hearing on Capitol Hill in Washington, Tuesday, March 22, 2022. (AP Photo/Andrew Harnik)
Senate Judiciary Committee Chairman Dick Durbin, D-Ill., attempted to preempt those questions Tuesday when he got the first crack at questioning Jackson in the hearing.
"There are two issues that came up repeatedly yesterday from the other side of the aisle that I want to address at the outset. One of them was a question of judicial philosophy," Durbin said. "Lo and behold, I've discovered the answer. It turns out that during the course of your time as a judge, you have… written opinions – 573, to be exact. I think maybe I'm off, what, one or two? And they more or less express your view of the law."
Sen. Dick Durbin, D-Ill., speaks before the Senate Judiciary Committee on the fourth days of hearing on Supreme Court nominee Amy Coney Barrett, Thursday, Oct. 15, 2020, on Capitol Hill in Washington. (AP Photo/Susan Walsh, Pool)
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"Over the course of my almost decade on the bench I have developed a methodology that I use in order to ensure that I'm ruling impartially and that I am adhering to the limits on my judicial authority," Jackson said when Durbin gave her the chance to expound on her philosophy.
"The first step is when I get a case, I ensure that I am proceeding from a position of neutrality. … The second step is once I've cleared the decks, so to speak, in this way I am able to receive all of the appropriate inputs," Jackson added, referring to the briefs, facts and arguments in the case. "The third step is the interpretation application of the law to the facts in the case. And this is where I'm really observing the constraints on my judicial authority."
Sen. Lindsey Graham, R-S.C., meanwhile asked Jackson if she is an "activist judge," which the nominee said she is not. But Graham was not convinced.
"Every group that wants to pack the court, that believes this court is a bunch of right-wing nuts who are going to destroy America, that consider the Constitution trash, all wanted you picked," Graham said.
FILE - Sen. Lindsey Graham, R-S.C., speaks during a news conference outside the Supreme Court in Washington, Thursday, April 22, 2021. (AP Photo/Susan Walsh, File)
Sen. John Cornyn, R-Texas, engaged in perhaps the most substantive exchange of the day with Jackson. He asked Jackson his thoughts on unenumerated rights and substantive due process – two relatively vague doctrines that conservatives sometimes criticize as being used as a basis for judicial activism. Cornyn appeared to criticize the 2015 Obergefell v. Hodges decision, which said states must recognize same-sex marriage.
"One of the things that concerns me is here is an example of the courts finding a new fundamental right that is mentioned nowhere in the document of the Constitution," Cornyn said. "How do you try to avoid being seen as a policymaker by embracing doctrines like substantive due process, which is essentially gives judges carte blanche to do whatever they want?"
"I do have a methodology that is designed to avoid my importation of policy perspectives, that judges are constrained in our system," Jackson said. "In all cases I am looking neutrally at the arguments of the parties… on both sides of the issues."
Cornyn, however, noted that the job of a Supreme Court justice is different than that of a federal judge. "You will be bound by nothing," Cornyn said.
Sen. John Cornyn, R-Texas, speaks to the media after a tour of part of the Rio Grande river on a Texas Department of Public Safety boat on March 26, 2021 in Mission, Texas. (Photo by Joe Raedle/Getty Images)
"I would just say that although the Supreme Court is not bound in the sense of having to apply prior precedent, there is stare decisis in our system," Jackson said.
Under questioning from Sen. Dianne Feinstein, D-Calif., Jackson also delved into her philosophy on "stare decisis," which means the Supreme Court will generally stand by its previous decisions. Feinstein further asked Jackson if Roe v. Wade is a "super-precedent." Jackson noted Roe has been "relied upon" and cited in other cases, which is an important factor in stare decisis. But she stopped short of calling Roe a "super-precedent."
Durbin also gave Jackson the chance to respond to Hawley's child porn comments. The GOP senator laid out several cases Monday in which he said Jackson handed down sentences that were lighter than what federal sentencing guidelines recommended or what prosecutors asked for.
"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. "These are some of the most difficult cases that a judge has to deal with because we're talking about pictures of sex abuse of children. We're talking about graphic descriptions that judges have to read and consider when they decide how to sentence in these cases."
U.S. Sen. Josh Hawley, R-Mo., meets U.S. Supreme Court nominee and federal appeals court Judge Ketanji Brown Jackson in his office at the United States Capitol building in Washington, March 9, 2022. (REUTERS/Evelyn Hockstein)
Jackson added that part of the reasoning in her cases was not just the sentencing guidelines and what prosecutors recommended, but a federal law that requires judges not impose sentences "greater than necessary to promote the purposes of punishment." Jackson also emphasized that she ensures to tell child porn offenders about the horrific effects of their action on the victims during all such sentencings.
During those comments from Jackson, Hawley was listening intently and taking lots of notes.
Judiciary Committee Ranking Member Chuck Grassley, R-Iowa, questioned Jackson on several topics. They included the First Amendment, Second Amendment and how she should determine what a fundamental right is under the Constitution.
Grassley also asked Jackson if there's a current or former justice whose philosophy most reflects hers. Jackson didn't specifically answer but said her "methodology" is informed by her time as a trial judge. Grassley also noted Jackson said in her first judicial confirmation that the Constitution is not a "living document," but declined to answer a similar question in her second.
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Grassley also mentioned court-packing during that exchange, which Jackson declined to weigh in on during the issue in her questioning with Durbin.
FILE - Supreme Court nominee Ketanji Brown Jackson meets with Senate Judiciary Committee ranking member Sen. Chuck Grassley, R- Iowa, on Capitol Hill, March 2, 2022, in Washington. (AP Photo/Evan Vucci, File)
"I agree with Justice Barrett in her response to that question when she was asked before the committee," Jackson said.
But Grassley further pushed Jackson on comments from Justice Stephen Breyer and late Justice Ruth Bader Ginsburg that court-packing would be a bad idea.
"Respectfully senator, other nominees to the Supreme Court have responded as I will, which is that it is a policy question for Congress," Jackson responded.
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Graham meanwhile used part of his time questioning Jackson to dwell on past judicial confirmations, including Justice Amy Coney Barrett. He asked Jackson about comments from Sen. Dianne Feinstein, D-Calif., telling Justice Amy Coney Barrett, "The dogma looks loudly within you, and that's of concern."
Graham also praised Jackson for her work on behalf of Guantanamo Bay detainees, but pressed her on her work in private practice on war issues.
"I'm suggesting the system has failed miserably and advocates to change the system like she was advocating would destroy our ability to protect this country," Graham said in an exchange with Durbin. "Look at the frigging Afghan government it's made up former detainees at Gitmo."
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