Utah Sen. Mike Lee was among members of the Senate Judiciary Committee who questioned U.S. Supreme Court nominee Judge Ketanji Brown Jackson about her sentencing record in child pornography cases.
On Monday, Sen. Josh Hawley, R-Mo., claimed her treatment of child sex offenders showed an “alarming pattern” of leniency. Jackson pushed back against the charge under questioning by various senators.
Lee said Jackson “departed downward” from the federal sentencing guidelines when meting out punishment for the offender in 10 child pornography cases she handled.
“It’s hard for me to understand departing from those in every case you’ve got because isn’t a departure supposed to be grounded in finding that it’s outside the heartland of cases in that range, cases of that sort?” he said.
Jackson said child pornography cases are “horrible cases that involve terrible crimes” and the judge looks at all the evidence consistent with Congress’ factors for sentencing.
“The court is told that you look at the guidelines but you also look at the nature and circumstances of the offense, the history and characteristics of the offender, there are a series of factors,” she said.
Also, in most of the cases, she said, federal prosecutors asked for lesser sentences because the guideline system is not doing the work in this particular case, said Jackson, who served on the U.S. Sentencing Commission before being appointed a federal judge.
During his allotted 30 minutes for questioning, Lee also asked Jackson her views on the Ninth Amendment, the Commerce Clause, the Equal Protection Clause and other constitutional issues. Before the hearing, Lee said he was interested in where Jackson stands on expanding the size of the Supreme Court, though he didn’t get into that topic himself, though other senators did.
Under questioning from Sen. Dick Durbin, D-Ill., the committee chairman, Jackson was asked to address Hawley’s assertion that she went easy on child pornographers.
“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.
Jackson said she puts great weight on victims’ perspective when sentencing sex offenders.
“Almost every one of these sentences, when I look in the eyes of a defendant who’s weeping because I’m giving him a significant sentence, what I say to him is, ‘Do you know that there is someone who has written to me and she has told me that she has developed agoraphobia — she cannot leave her house — because she thinks that everyone she meets will have seen her, will have seen her pictures on the internet, they’re out there forever, at the most vulnerable time of her life and so she’s paralyzed?’” she said.
“I tell that story to every child porn defendant as a part of my sentences, so that they understand what they have done.”
Lee also questioned Jackson, the first Black woman to be nominated to the Supreme Court, about her judicial philosophy.
“Does the law determine the outcome of a case or does the outcome determine the law?” he asked.
Jackson replied that the law determines the outcome of a case. “The law and the facts of the case determine the outcome of the case,” she said.
The Supreme Court has clearly decided that in order to interpret provisions of the Constitution it looks to the original public meaning of the words.
“Sometimes that yields a particular answer. Other times you may have to look to practices historically from that time,” Jackson said.
“The way in which the Supreme Court interprets the Constitution is with reference to the text at the time,” she added. “That is one of the constraints, as I mentioned, in terms of my own way of handling interpreting the law. One of the constraints is that you’re bound by the text and what it meant to those who drafted it.”
In facing questions about adding justices to the nine-member Supreme Court, Jackson declined to give an answer, saying such speculation goes beyond “the proper role of a judge.”
“Again, my North Star is the consideration of the proper role of a judge in our constitutional scheme,” Jackson said, responding to Durbin. “And in my view, judges should not be speaking to political issues and certainly not a nominee for a position on the Supreme Court.”
Lee posted a brief video on Twitter ahead of his questioning, saying that Jackson has so far declined to talk about so-called court packing.
“I do think it’s an important issue. It’s an important issue that is not one that could ever come up and be decided by the Supreme Court. ... It’s set aside as something for Congress but it has implications for the court, which is why some of us would like to know where she stands on it and what she would at least acknowledge is the risks associated with doing that,” he said.
Lee has called court packing “wrong,” and noted that President Joe Biden, as a senator, called it a “bonehead” idea. He raised the topic in his opening statement Monday on the first day of Jackson’s confirmation hearing.
“We lose the ability to protect the court if we allow arguments to take root that are focused on expanding that and turning the court into a political body,” Lee said.
Durbin noted that now-Justice Amy Coney Barrett also declined to answer questions about court packing during her confirmation hearings in 2020, saying she will not state an opinion on matters of public policy.
Sen. Chuck Grassley, R-Iowa, the committee’s ranking member, pointed out that current and past justices, including Stephen Breyer and Ruth Bader Ginsburg, have shared their opposition to court packing, Jackson cited Barrett’s response.
“Respectfully, senator, other nominees to the Supreme Court have responded as I will, which is that it is a policy question for Congress, and I am particularly mindful of not speaking to policy issues because I am so committed to staying in my lane of the system,” she said.
The Constitution allows Congress to decide how many justices sit on the Supreme Court. The court has had nine seats since 1869.
The idea of expanding the court came up after the Republican-controlled Senate refused to give President Barack Obama’s Supreme Court nominee Merrick Garland a confirmation hearing in 2016. It gained traction after the Senate confirmed President Donald Trump nominees Neil Gorsuch and Brett Kavanaugh to the court. It picked up further after Trump’s third conservative nominee, Barrett, was appointed.
Durbin said he was surprised that Republicans are raising the issue. There’s only one living senator who has changed the size of the court, and that is former Senate Majority Leader Mitch McConnell, R-Ky., when he refused to allow Garland a hearing, effectively shrinking the court to eight justices, Durbin said.
