Supreme Court nominee Ketanji Brown Jackson sat for another long day of questioning Wednesday from senators on the Judiciary Committee on the third day of her confirmation hearings.
The first round of questioning Tuesday saw a sharp division in approaches between Democrats and Republicans. Democrats largely praised Jackson’s record and highlighted the historic nature of her nomination as the first Black woman to be put forth for the court.
Republicans focused their attacks on her history as a public defender, painting the sentences she handed down in some criminal cases as insufficient while seeking to tie her to cultural flashpoints.
Here are key moments from Wednesday's session:
- Sens. Dick Durbin, D-Ill., and Ted Cruz, R-Texas, got into a heated exchange when Cruz ran out of time but continued to shout questions.
- Jackson said she would recuse herself from the current Harvard discrimination case because of her role with the school.
- Sen. Lindsey Graham, R-S.C., got upset in a series of questions about Justice Brett Kavanaugh's hearing.
Graham also spoke directly to child pornographers.
Key takeaways from second day of questioning
Original intent and ‘modern day’
Under questioning about how to reconcile constitutional provisions written for a world that has dramatically changed, Jackson discussed her philosophy for balancing that.
“It’s a process of understanding what the core foundational principles are in the Constitution, as captured by the text, as originally intended, and then applying those principles to modern day,” she said under questioning about how the First Amendment’s protections for a free press apply in a world of smartphones.
Sen. Sheldon Whitehouse, D-R.I., said that judicial temperament and integrity are important but that “judicial philosophy” is overrated. He said it’s often a smokescreen for a policy-driven approach to judging that powerful special interests want to see, citing “originalism” as an example.
Graham’s aggressive questioning
The mood in the room was calmer and more jovial than Tuesday — until Sen. Lindsey Graham, R-S.C., took the mic. The exchange quickly grew tense as Graham took on a hectoring tone, grilling her about Democrats’ treatment of a lower court nominee from two decades ago and of Justice Brett Kavanaugh.
As he grilled her on illegal immigration, child pornography sentencing and past judicial battles, Graham interrupted Jackson multiple times, frustrating Democrats.
“Senator, she’s had nothing to do with the Kavanaugh hearings,” Durbin responded.
Read all of the key takeaways and highlights here.
Hearing ends after second day of questioning
The Senate Judiciary Committee concluded its second day of questioning Judge Ketanji Brown Jackson around 7:35 p.m. ET.
Committee Chairman Dick Durbin, D-Ill., said the panel would meet to consider Jackson's nomination on March 28 at 3 p.m., but it's unlikely the vote will take place that day since committee rules allow any one senator to delay the proceedings for one week. That means the vote will likely take place April 4.
In the meantime, outside witnesses will provide testimony to the committee on Thursday starting at 9 a.m. Jackson will not be present for the witness testimony.
Blackburn pushes Jackson on abortion and gun rights
In the final round of questioning Wednesday, Sen. Marsha Blackburn, R-Tenn., asked Jackson about abortion rights and attempted to get her to weigh in on the right to an "effective abortion," cases where a pregnancy is not effectively terminated in a first attempt.
"Issues like the one that you have raised are in the court system now, and as a result, as a nominee to the Supreme Court, I am not able to opine about the constitutionality or not of the kinds of legislation that you mentioned," Jackson said.
Blackburn later turned to gun rights, asking Jackson to detail the high court's precedent on the matter.
"Current Supreme Court precedent says that under the Second Amendment there is an individual fundamental right to keep and bear arms in the home," Jackson said.
Blackburn asked Jackson if she considers it an "individual right," not only reserved for militias.
Jackson responded saying the Supreme Court has established it is an individual right.
'Persevere': Jackson recounts emotional moment from first year at Harvard
Sen. Alex Padilla, D-Calif., asked Jackson to offer her advice on inspiring young people who doubt their abilities.
"I hope to inspire people to try to follow this path because I love this country, because I love the law, because I think it is important that we all invest in our future, and the young people are the future," Jackson said. "I want them to know that they can do and be anything."
The nominee then became emotional as she described her own experience arriving at Harvard from Miami as a freshman and feeling homesick while questioning whether she belonged there.
She said she encountered an unidentified Black woman as she walked through Harvard Yard, and the woman leaned over as they passed each other and told her to "persevere." She said she would use that same word in encouraging young people on their path today: "I would tell them to persevere."
Kennedy presses Jackson on crack cocaine disparities
Sen. John Kennedy, R-La., pressed Jackson to say whether crack cocaine and powder cocaine were "equal" in danger.
Jackson rebuffed the line of questioning, saying Kennedy was delving into a "policy matter."
"That's a policy determination. That's what policymakers do," she said.
When pressed further about what she’s seen in her own experience on the bench, Jackson cited findings from the U.S. Sentencing Commission, which studies and develops policies for federal courts.
"I have seen evidence through the Sentencing Commission that the two compositions are chemically similar — so similar as to be indistinguishable," she said.
Padilla asks Jackson about using terms like 'noncitizen' instead of 'illegal immigrant'
Sen. Alex Padilla, D-Calif., asked Jackson about her choice of words in writing opinions, noting she has used terms such as “undocumented” and “noncitizen” instead of “alien” or “illegal immigrant.”
He asked if she thinks the language used by judges carries important weight in society.
Jackson responded by saying judges, unlike other government officials, “are required to write our opinions, to explain our decisions.”
“I have long believed, in that capacity, that our clarity and language matters,” she said. “So they do matter.”
Hearing resumes for Wednesday's final stretch of questioning
After a 26-minute break, the hearing resumed at 6:06 p.m. ET, with Sen. John Kennedy, R-La., asking the next round of questions.
Another break
The committee took a dinner break starting at 5:40 p.m. ET. Once it returns, there are only five senators left to ask questions.
Durbin opposed to obtaining pre-sentence reports for committee
Sen. Dick Durbin, D-Ill., took a moment between speaking slots to respond to a letter signed by 10 GOP senators on the committee that requested additional information related to child pornography convicts she’d sentenced.
He said his Republican colleagues, when it came to such information, had “exactly what the Democratic side and White House had” — including probation office recommendations in the cases that senators like Ted Cruz, R-Texas, and Josh Hawley, R-Mo., had highlighted during their questioning of Jackson.
Durbin said he did not wish to request pre-sentence reports — as the letter signed by the 10 senators had asked for — because doing so could endanger or compromise the victims of the crimes.
He explained that such reports are “typically filed under seal,” that they “can contain highly sensitive personal information” about defendants and “innocent third parties and victims” — and that they’d never been turned over to the committee previously.
“I would not want it weighing on my conscience that we are turning over these pre-sentence reports to this committee for the first time in history,” Durbin said, adding that doing so could “somehow compromise or endanger any victim as a result.”
“That's a bridge too far for me,” he added.
Cruz, replying to Durbin, reiterated the request but added that he would agree to redact sensitive information.