Sen. Mike Lee and Supreme Court nominee Judge Ketanji Brown Jackson went back and forth Wednesday over her giving an offender in a child pornography case a lesser sentence than what federal guidelines recommended.
The Utah Republican also questioned Jackson about the Antiquities Act as it relates to Western land issues, partial birth abortion cases and court packing during the third day of her confirmation hearings before the Senate Judiciary Committee.
The committee is expected to hear witness testimony Thursday before voting in the coming days on whether to advance Jackson to the full Senate for consideration.
As Sen. Josh Hawley, R-Mo., did Tuesday, Lee, R-Utah, focused on the case United States v. Hawkins, where Jackson gave the 18-year-old defendant a three-month prison sentence, below the government’s recommendation of two years in prison and well below the federal sentencing guideline of a minimum of 97 months of incarceration.
In 2012, an 18-year-old high school student Wesley Hawkins started downloading pornographic images from the internet. Hawkins, who is gay, was driven by a kind of curiosity about the images and his connection to the people in them seemed, his lawyer said, to be “one of identifying” rather than of “exploiting them sexually,” according to the New York Times.
When Hawkins reposted images on YouTube, including images of young boys, police got a “cyber-tip” about him and a detective posing as a fellow child pornography collector reached out to him by email and suggested they trade images, the Times reported.
Prosecutors say that Hawkins eventually swapped images with the undercover detective, sending some files and asking for others.
Hawkins was arrested in June 2013, and prosecutors said he was immediately cooperative and took responsibility for his actions, according to the Times. He pleaded guilty to downloading and trading scores of images and movies containing child pornography, several showing boys who were under the age of 13.
Jackson said she recalled the Hawkins case, like all child pornography cases, to be “really difficult,” and said that his case in many way was an “outlier” in terms of the considerations the law required her to take into account.
“As in every child pornography case that I sentenced I considered all of the evidence, all of the relevant factors,” she said.
“What I can assure you is that I took every one of these cases seriously in my duty and responsibility as a judge and I made my determination in light of the seriousness of the offense, the nature and circumstances of the offense, the history and characteristics of the defendant, the need for sentence imposed to promote various purposes of punishment and all of the other factors that Congress prescribed.”
Lee replied, “OK, you keeping reciting that standard yet you specifically excluded from consideration the fact that he had requested and obtained pre-pubescent child pornography images.”
Jackson said she didn’t exclude it but looked at the sentencing guidelines as the Supreme Court requires.
Lee cut off her answer, telling her to take a look at the transcript of her court proceeding.
“It looks to me you excluded it, and your action sentencing him to three months for one of the most heinous offenses imaginable, keep in mind because these are transmitted electronically, they’re there for years. They revictimize these victims the rest of their lives,” he said.
Lee also asked Jackson her thoughts on the Antiquities Act, which allows presidents to designate national monuments, noting the law limits parcels of land to the “smallest area compatible with the proper care and management of the objects to be protected.”
Jackson said if presented with a case, she would “proceed as I always have” to understand the parties’ arguments, look at what the presidential proclamation says and whether there is precedent that further defines what Congress intended with law.
“This is one of the things I’ve appreciated about you in these hearings. I really like the way you’ve described the fact that it’s important to construe the text that you’re asked to interpret. ... You’re endeavoring to figure out the original public meaning,” Lee said.
Lee pressed Jackson for her opinion on expanding the size of the Supreme Court, but she again declined to offer one. The senator said the issue of court packing could not come before the Supreme Court because the number of justices is not specified in the Constitution but set by Congress.
Jackson said she has a lot of opinions.
“The reason why in my view it’s not appropriate to comment is because of my fidelity to the judicial role. I understand that it’s a political question and that is precisely why I think that I am uncomfortable speaking to it,” she said.
Lee said he agrees that judges shouldn’t wade into political issues but this one is different, and with her experience as a judge and understanding of the federal court system, her perspective would be valuable.
He said he’s concerned about the issue because even when court packing doesn’t succeed legislatively, it can have an impact on how a Supreme Court justice might decide a particular case.
“I hope that between now and the end of the day you’ll see fit to tell us what your opinion is,” Lee said. “I do think it’s worth discussing.”