Supreme Court nominee Ketanji Brown Jackson faced hours of questioning from senators during the second day of her confirmation hearings Tuesday.
Democrats largely praised Jackson's record, while Republicans focused their attacks on her history as a public defender.
Questioning will resume Wednesday at 9 a.m. ET.
Key highlights from Tuesday's session:
- Jackson declined to weigh in on "packing" the Supreme Court.
- After a series of questions about prisoners at Guantanamo Bay, Cuba, Sens. Lindsey Graham, R-S.C., and Dick Durbin, D-Ill., got into a heated exchange about the inmates.
- Jackson said abortion rights are "settled law."
- Sen. Ted Cruz, R-Texas, repeatedly tried to goad Jackson into saying critical race theory is part of her judicial philosophy
- Jackson declined to answer questions from Sen. Marsha Blackburn, R-Tenn., intended to draw attention to the national debate about transgender rights
Key takeaways from a marathon day of questions
Jackson rejects labels, vows ‘impartiality’
Jackson said she was “reluctant” to apply labels such as “originalism” and “living Constitution” to capture her judicial philosophy, saying that the Constitution is “fixed in its meaning” but that sometimes, judges need to also look at history, structure and circumstances alongside the original intent of a statute.
One word Jackson repeatedly returned to was “impartiality” as she discussed her method of ruling on cases as a judge.
Republicans sharpen attacks
Sen. Ted Cruz, R-Texas, pressed Jackson about The New York Times’ “1619 Project,” critical race theory, the book "Antiracist Baby" by Ibram Kendi — and whether she believes "babies are racist."
In a tense set of questions, Cruz pushed Jackson about her sentencing record in child pornography cases, with charts comparing her punishments to officers’ recommendations. He pressed her about the meaning of civil rights leader Martin Luther King Jr.’s words.
Sen. Josh Hawley, R-Mo., focused all of his questioning on child pornography cases and sought to depict Jackson as too lenient against defendants. She appeared visibly frustrated as she sought to explain her role in sentencing.
For all the key takeaways and highlights, go here.
Hearing concludes Day 2
At 10:12 p.m. ET, the second day of Jackson's hearings concluded. Senators will return at 9 a.m. ET Wednesday to finish the first round of questions and conduct a second round.
Before gaveling out, Durbin offered a fact check of some of the statements that had been made about the judge and her record.
Blackburn asks about transgender issues
Sen. Marsha Blackburn, R-Tenn., asked Jackson a series of questions intended to draw attention to the national debate about transgender rights.
Jackson responded to them by deferring, pointing out that Blackburn was trying to ask policy questions and not legal questions.
"Do you think schools should teach children that they can choose their gender?" Blackburn asked, opening her line of questioning about transgender issues.
"I’m not making comments about what schools can teach," Jackson responded.
Blackburn then quoted from an opinion that Justice Ruth Bader Ginsburg wrote that discussed the differences between men and women. She then asked Jackson whether she agreed with Ginsburg.
Jackson said she hadn't read the case, adding, "It's hard for me to comment."
Blackburn then asked, "Can you provide a definition for the word 'woman?'"
"Can I provide a definition? No," Jackson said, adding, "Not in this context. I’m not a biologist.
"I address disputes. If there is a dispute about a definition, people make arguments, and I look at the law and I decide," she added.
Blackburn questions Jackson about abortion
Sen. Marsha Blackburn, R-Tenn., pressed Jackson on her views about abortion, arguing that Roe v. Wade should be overturned.
She quoted from a filing Jackson made in a case that referred to a group of anti-abortion rights activists as "noisy" and "hostile." She then asked Jackson whether, when she saw anti-abortion rights women at her church, she viewed them the way the women in the filing were described.
"Do you look at them thinking of them in that way, that they're noisy, hostile, in your face? Do you think of them? Do you think of pro-life women like me that way?" Blackburn asked.
Jackson said the line Blackburn quoted was part of a brief filed on behalf of a client, not a statement of her own opinion.
"That was a statement made in a brief I made on behalf of my client," Jackson said.
But Blackburn found the response insufficient.
"I think even zealous advocacy doesn’t allow that kind of rhetoric on a free speech issue," Blackburn said.
Jackson emphasizes fundamental right to vote
Sen. Alex Padilla, D-Calif., asked Jackson about her view on the Supreme Court's role in ensuring the protection of voting rights and democracy in light of recent restrictive voting laws that he said ran counter to the spirit of the movement that led to the Voting Rights Act.
"The right to vote is protected by our Constitution," Jackson said. "The Constitution makes clear that no one is to be discriminated against in terms of their exercise of voting, and the Congress has used its constitutional authority to enact many statutes that are aimed at voting protection."
Jackson said that concerns about both voting access and ensuring an absence of fraud "are embodied by various laws and provisions, and there are disputes at times over the concerns and the balances that are being made across the country relating to the exercise of voting."
In keeping with her efforts to skirt politics, she went on to describe how such disputes eventually reach the Supreme Court while appearing to emphasize the fundamental nature of the right to vote.
Jackson sidesteps questions on 'court-packing'
Sen. John Kennedy, R-La., repeatedly pressed Jackson about her thoughts on "court-packing," asking for her opinion on increasing the number of Supreme Court justices.
"I don't understand why you won't weigh in on this issue," Kennedy said at one point, after Jackson declined to share her personal opinion on the matter.
"I feel so strongly about ensuring that judges remain out of political debates," she said. "I don't think it's appropriate for me as a nominee to comment on a political matter that is in the province of Congress."
Kennedy, probing further, asked whether it would "make a difference" to Jackson if she were one of nine justices or one of 28.
"I would be thrilled to be one of however many Congress thought it appropriate to put on the court," she said.
Hearing resumes
The hearing resumed at 8:37 p.m. ET, with three more senators left on the schedule for Tuesday night.
GOP senator predicts Jackson will be confirmed
Sen. John Cornyn, R-Texas, a member of the Judiciary Committee, made a prediction Tuesday evening about Judge Ketanji Brown Jackson.
"I think she's done pretty well," Cornyn said in the Capitol. "She's going to get confirmed."
Cornyn, who questioned her earlier in the day, said he's undecided and leaning "no" personally but that it was a matter of how many Republican votes she would get.
"She's going to be a reliable vote for the left wing of the court," he said. "She's not going to change the ideological balance on the court. So I think that makes it less controversial — or less consequential."
Jackson on balancing career and children: 'Things will turn out OK'
In response to a question from Sen. Booker, Jackson offered a little more explanation of her opening remarks when she told her daughters that she had "juggled" her career and raising them — and not always gotten the balance right.
“I hope for them, seeing me — hopefully, you all will confirm me — seeing me move to the Supreme Court that they will know you don’t have to perfect in your career trajectory, that you can still end up doing what you want to do,” Jackson said. “You don’t have to be a perfect mom, but if you do your best and you love your children that things will turn out OK.”
'Well within the norm': Booker pushes back on Hawley
Sen. Cory Booker, D-N.J., defended Jackson's judicial record, arguing that Sen. Josh Hawley's line of attack against the nominee on child pornography cases "doesn't hold water."
"You are well within the norm, nationally, for going below the sentencing guidelines," Booker said.
He went on to cite data that appeared to indicate Jackson wasn't an outlier with her sentencing history in a series of cases highlighted by Hawley, R-Mo., earlier in the day.
Booker also noted that Jackson has been endorsed by victim advocacy groups and organizations.
Committee recesses for a break
The committee recessed for a 20-minute dinner break just before 8 p.m. When they return, three senators still have their questions remaining tonight.
Booker connects attacks on Jackson about crime with her perspective as a Black woman
Sen. Cory Booker, D-N.J., responded to the criticism from Republicans on the panel that Jackson was "soft" on crime by pointing out that most murder victims in the U.S. are Black men.
He drew the connection that Jackson is a Black woman and that her brother worked as a police officer.
"I imagine you feel in a difference the anguish about what many communities of color struggle with when it comes to crime," Booker said.
"You're right, senator. It is very anguishing, and it is something that I know all too well," she said.
Booker also pointed out that Jackson is a mother.
"And you a person who has that same fear that many mothers have for their daughters who do go out in this world," Booker said. "I just find it hard to believe your law enforcement background, you’re a mom, that you take lightly any of this urgency to keep America safe."
Cruz suggests Dems delayed GOP senators' access to info on Jackson
Sen. Ted Cruz, R-Texas, complained that he had not had access sooner to a chart of probation recommendations for Jackson that Durbin said emerged after Hawley began questioning about her sentences in child pornography cases.
The information had been used by Democrats on Tuesday to rebut Hawley's line of attack.
"We were just told that the White House gave it to Democrats earlier today," Cruz said. "Is there anything else that Democrats have access to in this case that they're not sharing with Republicans on this committee?"
Sen. John Kennedy, R-La., chimed in, asking whether GOP committee members "had to be clairvoyant" to know to request the chart.
"The information that we received from the White House, I'm told that everyone had access to if they wanted it," Durbin said, later adding: "Most of this information was published in The Washington Post five days ago, all right? This is not confidential information."
Cotton quizzes Jackson on criminal sentences
Sen. Tom Cotton, R-Ark., asked Jackson about her take on several criminal justice issues — including murder and rape.
“It’s not that they’re difficult questions, it’s that they’re not questions for me," Jackson ultimately said to the series of questions. "I am not the Congress. I am not making policy around sentencing.”
First, Cotton asked Jackson whether there should be more or less police in America. Jackson declined to answer, responding as she has to other questions that it was a policy question, not one a judge decides.
Then Cotton asked her about the average sentence for someone convicted of murder — about 17 years — and whether that was long enough.
She again pointed out that it was a policy question.
“Congress has prescribed a number of factors that judges look at when they sentence. It may in many questions not be, I can’t answer in the concrete,” Jackson said.
He then asked about the average rape sentence. Jackson pointed out that most rape cases are a matter of state law, not the federal cases that she’s been deciding on.
“That’s a policy question about the egregious crime of rape,” she said.
Hearing resumes
The hearing resumed at 6:47 p.m. ET, with Sen. Tom Cotton the next to ask questions.
Jackson defends opinion in Don McGahn case
Jackson cited precedent when asked by Hirono about how she ruled in the case requiring former White House counsel Don McGahn to testify to House impeachment investigators.
Hirono asked why Jackson found the opinion so persuasive.
Jackson responded by explaining the different types of precedent. And in the case of McGahn it was a horizontal precedent, which aims to maintain consistency and keep predictability.
"It means when you are in a district there are many judges, and if someone else in your district has handled a case that comes out and involves the same issues and comes out in a certain way, you as the second judge have to contend with that ruling," Jackson said. "You cant ignore the fact there is precedent in your district that handles a case in a particular way."
"The precedent wasn’t just close; it was nearly identical," she continued.
Committee takes brief recess
The Senate Judiciary Committee has taken another brief recess to allow senators to vote on the Senate floor.
Hirono notes several GOP-supported federal judges who sentenced similarly to Jackson in child porn cases
Following Hawley’s tense questioning of Jackson, Sen. Mazie Hirono, D-Hawaii, used her time to point out multiple other federal judges — who’d earned confirmation votes from Republicans — who’d issued sentences to criminals convicted of crimes involving child pornography below federal guidelines.
Hirono then asked Jackson whether she felt that suggested it meant any one of them was “soft” on child pornography offenders, as Hawley alleged against her.
Jackson declined to answer the question — but Hirono made her point in simply asking it.
“I think it would probably be quite unfair to characterize him as being soft on child pornography,” Hirono said.
In all, she mentioned by name more than five federal judges — including Ralph Erickson, Joseph Bianco, Amul Thapar, Richard Sullivan and Andrew Brasher — who she said had all ruled similarly to Jackson in sentences involving child pornography convictions.
"I'm not sure if you've ever met these judges before, but do you have any reason to believe they don't take child pornography seriously?" she asked.
Again, Jackson didn't have to answer for Hirono to make her point.
Hawley spars with Jackson over sentences for child pornography criminals
Sen. Josh Hawley, R-Mo., as he’d previously telegraphed, spent the near entirety of his allotted time asking Jackson about the sentences she’d handed down in various cases involving criminals who’d made or distributed child pornography that he and other Republicans have repeatedly argued were lenient.
The exchange included a tense moment, when Hawley acknowledged, "I am questioning your discretion and your judgment."
Hawley highlighted one case where federal guidelines called for 97 to 121 months of prison time. He said the prosecutor in the case asked for 24 months. Jackson, Hawley said, sentenced the defendant to three months in prison.
Jackson, who on several occasions Tuesday had already defended those sentences, reiterated that even government prosecutors had advocated for sentences less than federal guidelines and that other elements of the sentence, separate from prison time, were considered.
Calling the crimes in the case “heinous” and “egregious,” she said that “what a judge has to do is determine how to sentence defendants proportionally consistent with the elements that the statutes include with the requirements that the Congress has set forward.”
“The guidelines, as you pointed out, are being departed from, even with respect to the government’s recommendation,” she continued. “The government in this case and in others has asked for a sentence that is substantially less than the guideline penalty.”
“It’s not just about how much time a person spends in prison. It’s about understanding the harm of this behavior. It’s about all the other kinds of restraints that sex offenders are ordered to rightly live under at the end of the day,” she said. That includes “not only prison time,” she said, but also “restraints on computer use, sometimes for decades, restraints on ability to go near children, sometimes near decades — in order to effect what Congress has required, which is a sentence that is sufficient but not greater than necessary.”
She also emphasized that each case is different and, as a result, may require a different approach from each presiding judge.
"If you were to look at the greater body of not only my more than 100 sentences but also the sentences of other judges in my district and nationwide, you would see a very similar exercise of attempting to do what it is judges do, attempting to take into account all of the relevant factors and do justice individually in each case."
Jackson said the case had “unusual” factors that led to the way she issued her sentence, prompting Hawley to say, “I am questioning your discretion and your judgment. That is exactly what I am doing.”
White House: Covid-positive Psaki 'not a close contact' of Jackson
After press secretary Jen Psaki said Tuesday she tested positive for Covid, White House spokesman Andrew Bates said she had not come into close contact with Judge Ketanji Brown Jackson ahead of her Supreme Court confirmation hearings.
"Judge Jackson is not a close contact with Jen Psaki, nor are any of the administration staffers who are working with her on the Hill. Judge Jackson is also fully vaccinated and boosted," Bates said in an email.
Braun says Supreme Court should leave interracial marriage to states
Sen. Mike Braun, R-Ind., said the Supreme Court shouldn't interfere with legislation, such as interracial marriage, and should have left those decisions to individual states.
"If you're not wanting the Supreme Court to weigh in on issues like that, you're not going to be able to have your cake and eat it too. That's hypocritical," Braun told WFYI, Indianapolis' NPR and PBS radio station.
“Stick with interpreting the law,” Braun said. “Don’t legislate from the bench.”
Braun told the radio station Jackson seems well qualified, and he wants a justice who won't be an "activist." Jackson herself is in an interracial marriage.
Braun then walked back his comments, and the senator now says he “misunderstood” the question.
"Earlier during a virtual press conference I misunderstood a line of questioning that ended up being about interracial marriage, let me be clear on that issue — there is no question the Constitution prohibits discrimination of any kind based on race, that is not something that is even up for debate, and I condemn racism in any form, at all levels and by any states, entities, or individuals," Braun said in a statement to NBC News.
Jackson said Americans should be 'proud' of her nomination
Sen. Richard Blumenthal, D-Conn., asked Jackson about the hardships she has faced in her career and the impact that a Black female Supreme Court judge could have on young Black women and girls in America.
"I stand on the shoulders of generations past who never had any close to this opportunity, who were the first and the only in a lot of different fields," Jackson said. "My parents, as I said, were the first in their families to have the chance to go to college. I've been the first and the only in certain aspects of my life. ... This is a moment that all Americans should be proud."
Blumenthal called Jackson's confirmation "an extraordinary moment in our history" and noted that her appointment would make the Supreme Court "look more like America, but also think more like America."
Sasse, Jackson discussion on originalism underscores GOP talking points
Jackson says she doesn't model herself after any judge
Asked by Sen. Ben Sasse, R-Neb., which justices she’s closest to or which ones she might choose to model herself after, Jackson answered that she was a clean slate.
“I don’t really have a justice that I’ve molded myself after or that I would,” she replied. “What I have is a record. I have 570-plus cases in which I have employed the method that I have described and that shows how I have analyzed cases.”
“In every case, I am proceeding neutrally,” she added.
Hearing resumes
The hearing resumed at 4:15 p.m. ET. Sen. Ben Sasse, R-Neb., was the next senator to question Jackson.
But her emails? Coons praises Jackson's adherence to law in 2016 Hillary Clinton ruling
Coons used part of his questioning to point out that Jackson actually ruled on behalf of the Republican National Committee in a case, during the height of the 2016 presidential race, that resulted in the production of thousands of former Secretary of State Hillary Clinton's emails.
Coons said that ruling was evidence that Jackson has a “deserved reputation for following the law, not a partisan agenda.”
Jackson, Coons explained, had presided over a case in which the RNC had filed Freedom of Information Act requests to USAID for emails involving Clinton.
Jackson ruled in summer 2016 — just before the presidential nominating conventions — in favor of the RNC, and a result, the agency produced thousand of pages of emails.
“The substance and timing of case are really quite striking,” Coons said, saying that the ruling was a testament to Jackson’s adherence to the law and to “the statute issue and the evidence.”
Biden 'proud' and 'moved' by Jackson
President Joe Biden has been watching Jackson’s confirmation hearings, a spokesman said Tuesday, and likes what he’s seen.
"The President watched portions of Judge Jackson’s hearing yesterday and today and is proud of the way she is showcasing her extraordinary qualifications, her experience, and her even-handedness," White House deputy press secretary Chris Meagher said Tuesday.
"He was also moved by the grace and dignity she has shown, the deference to senators, and the level of detail she is offering, reinforcing the value of her experience, her intellect and the strength of her character," he said. Meagher noted the president was particularly struck by Jackson’s remarks on having family members serve as police officers, as well as “how she swiftly dismantled conspiracy theories put forward in bad faith.”
Committee takes brief break
At 3:44 p.m. ET, the committee recessed for a 20-minute break.
Jackson denies citing 1619 Project, critical race theory in cases
Sen. Chris Coons, D-Del., directly asked Jackson if she had ever cited the 1619 Project in any of her cases or used critical race theory to impose a sentence or framework, in which she denied both.
"When I analyze a case, I am looking at the arguments the parties raise in the case, I'm looking at the record, and I'm looking at the law, I'm looking at any statutes, I'm hewing to the text, I'm looking at constitutional provisions to the extent they are applicable," said Jackson. "Those are the inputs appropriate for a judge to consider and those are the only things I use in my decisionmaking."
The exchange came after Cruz attacked Jackson over the teaching of race at a Washington, D.C., private school for which she serves as a board member.
Cruz and Jackson have testy exchange over her law review note
Jackson showed her first signs of frustration while being questioned by Sen. Cruz, who she said mischaracterized a law review note she wrote in the 1990s. Cruz, a potential 2024 presidential candidate, seemed to suggest Jackson was sympathetic to people who commit sex crimes against children. Jackson rejected Cruz's claim, saying he mischaracterized her writing.
Jackson says there's 'a balance' to when and how Supreme Court should use 'shadow docket'
Klobuchar asked Jackson for her views on the the Supreme Court’s use of the “shadow docket” — a term that has risen in popularity to describe when the court in unsigned, sometimes extremely brief opinions issues decisions on an expedited or emergency basis.
The Minnesota senator cited the court’s use of the docket to refuse last fall to stop Texas’ controversial six-week abortion ban from going into effect as a prominent source of concern.
Jackson replied to the questions by saying, “there’s a balance the court has to consider” in how and when to use the shadow docket
“On the one hand, it has always had an emergency docket; the need for flexibility, the ability to get answers to the party at issue is something that is important in our system,” Jackson said. “On the other hand, the court has also considered the interest in allowing issues to percolate, allowing other courts to rule on things before they come to the court.”
“I am not privy at the moment to the justices’ views on why and how they’re using the emergency docket,” she added. “If i was fortunate enough to be confirmed, I would look at those issues, but it’s an interesting and important set of issues.”
Cruz goads Jackson on critical race theory
Cruz repeatedly attempted to goad Jackson into acknowledging that critical race theory was an element in her judicial philosophy.
Jackson repeatedly declined to take the bait.
When asked by Cruz to define critical race theory, Jackson replied that it is “an academic theory that is about the ways in which race interacts with various institutions.”
“It doesn’t come up in my work as a judge,” she added.
At another point, under questioning from Cruz, Jackson said, “it’s never something I’ve studied or relied on and it wouldn’t be something I would rely on if I was on the Supreme Court.”
In many cases, conservative politicians have conflated the term critical race theory — the academic concept typically taught in college courses to examine how laws and institutions perpetuate racism — with broader lessons surrounding race. Many have used the term to describe ideas and books that they believe are too progressive or political for the classroom.
Cruz, at another point, referred to a 2015 speech in which he claimed Jackson described her job as a judge as using critical race theory.
Jackson replied, “with respect, the quote you are mentioning there was about sentencing policy, not about sentencing.”
Moments earlier, Cruz asked Jackson if she agreed with some of the ideas of the 1619 Project, including whether “colonists declared independence because they wanted to keep the institution of slavery.”
“It is not something I’ve studied, it does not come up in my work,” she replied.
Later, Cruz repeatedly tried to pin Jackson on whether Georgetown Day School, on whose board she sits, teaches critical race theory. He held up a series of children and teen books about race.
“I don’t know. The board does not control the curriculum,” she said. “That’s not what we do as board members.”
Klobuchar asks Jackson about First Amendment case
Sen. Amy Klobuchar, D-Minn., asked Jackson a series of questions in regards to the 1964 New York Times Co. v. Sullivan landmark decision and what she would do if the court were to reconsider the decision.
Jackson would not say whether she would support a revisit of the precedent.
"Anytime the court is asked to revisit a precedent there are criteria the court uses to decide whether or not to overrule a precedent," said Jackson.
She adds, the criteria would include whether the precedent is wrong or egregiously wrong, whether there are other similar cases, whether or not the precedent is workable.
"It would be what I would look at," she continued.
The case provides First Amendment protections to the press and conservatives have recently begun publicly discussing an effort to have the case overturned.
Ted Cruz says he and Jackson went to law school together
Sen. Cruz began his questioning by remarking that he and Jackson went to Harvard Law School together and were both on the school's law review.
Jackson: 'My grandparents had just a grade school education.'
Asked by Sen. Klobuchar how she could increase public confidence in the Supreme Court, Jackson said she hoped her path to a Supreme Court nomination could restore that confidence.
Jackson said she is standing on the shoulders of generations of Americans "who never had anything close to this kind of opportunity."
"From my grandparents who had just a grade school education," she said. "But instilled in my parents the importance of learning."
As she has in the past, Jackson acknowledged her parents whom she said were the first in their families to go to college.
"So this nomination, against that backdrop, is significant to a lot of people," she said. "And I hope that it will bring confidence. It will help inspire people to understand that our courts are like them and our judges are like them. Doing the work, being a part of our government. I think it's very important."
Under questioning from Lee, Jackson defends sentences given to child pornography convicts
After a handful of Republican senators vowed during their opening statements to question Jackson on what they say is a pattern of handing down lenient sentences handed down to criminals convicted of making or distributing child pornography, Sen. Mike Lee, R-Utah, did just that.
Lee, pointing to what he said were 10 cases where Jackson handed down a sentence for such offenders that were below federal guidelines, asked the nominee to explain her reasoning.
Jackson responded by saying that federal guidelines were just one element that judges should look at in determining sentences for these crimes and shouldn’t be the sole factor in judges handing down such sentences.
“The court is looking at all of the evidence consistent with Congress’ factors for sentencing. The guidelines are one factor. But 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,” Jackson said.
“In the cases, you are also getting recommendations, and in most of the cases … the government is asking for a sentence below the guidelines because this guideline system is not doing the work in this particular case,” she said.
Jackson won't comment on Section 230 reform
Jackson said she could not comment on the issue of Section 230 of the Communications Decency Act, which is a provision of federal law providing legal protection to websites.
Sen. Mike Lee, R-Utah, asked Jackson if it would be within Congress' authority "to condition the receipt and availability of Section 230 immunity on those online interactive service providers operating as a public forum that is not discriminating on the viewpoint of those posting?"
Jackson responded, "I can’t comment on a particular issue about whether or not it is constitutional or not. The criteria you identify would be relevant I think as to whether or not the government is seeking to regulate along viewpoint lines under the first amendment that is something that is generally impermissible."
Photo: Jackson's husband sports Ben Franklin socks
Durbin corrects allegation Cornyn made about Jackson calling Bush and Rumsfeld war criminals
During the lunch break, Durbin said they spent time doing some research about Cornyn's previous claim that Jackson called the former president and late defense secretary war criminals.
Durbin confirmed that Jackson filed several habeas petitions against the U.S. when she served as a federal public defender in which Bush and Rumsfeld were named in their official capacities.
"You were advocating on behalf of individuals who argued they were civilians, wrongly classified as enemy combatants of the United States. And the filing was part of your professional responsibility to zealously advocate for your clients," Durbin said.
In those petitions, Durbin said the defendants "raised more than a dozen claims for relief, one of which was an allegation that the government sanctioned torture against the individuals, which constituted war crimes under the Alien Tort statute and the Tort statute allows courts to hear cases for alleged violations of the law of nations or the treaties of the United States."
"Apparently, this is what Sen. Cornyn was referencing," Durbin added. "So to be clear, there was no time where you called President Bush or Secretary Rumsfeld a 'war criminal.'"
Hearing resumes
The hearing resumed at 1:39 p.m. ET. Sen. Mike Lee will have the first round of questions.
Committee breaks for lunch
At 12:52 p.m. ET, the Senate Judiciary Committee took a 30-minute lunch break.
Whitehouse returns to his preferred topic: dark money
It wouldn’t be a day of Supreme Court nominee confirmation hearings if Sen. Sheldon Whitehouse, D-R.I., didn’t mention his concerns over dark money.
Whitehouse returned to his preferred topic during his questioning time of Jackson on Tuesday (he mentioned the term 12 times during his opening remarks on Monday), once again expressing his concerns about the role of dark money on the right.
“There is a difference I believe between a dark money interest rooting for someone, and right-wing dark money interests having a role in actually picking the last three Supreme Court justices,” Whitehouse said.
He then referred to a series of posters his staff had made for him that featured examples of GOP politicians, including former President Donald Trump, discussing how they’d rely on lists made by the Federalist Society in determining whom to nominate to the Supreme Court.
Dark money refers to funds raised to influence elections by organizations that aren’t required to disclose the identifies of their donors.
“I think it matters when people are seeking to influence the makeup of the court, that the public understands what business they may have before the court,” he said.
Whitehouse did not ask Jackson about dark money, he instead spent his allotted time for questions merely talking about the topic. Although, toward the end of his remarks, he asked Jackson about the differences between being a trial court judge and an appellate court judge.
Cornyn asks Jackson about Gitmo filings
Cornyn said Jackson called former President George W. Bush and his defense secretary, Donald Rumsfeld, war criminals in a legal filing and asked her why she did since "it seems so out of character."
Jackson was unsure about what he was referring to and Cornyn said that she made the description when she was representing a member of the Taliban, whom the Defense Department identified as an intelligence officer for the group.
"Senator, I don't remember that particular reference," she said. "I was representing my clients and making arguments. I'd have to take a look at what you meant. I did not intend to disparage the president or the secretary of defense."
Cornyn responded, "Being a war criminal has huge ramifications. You could be subject to the jurisdiction of the International Criminal Court and hauled before that international tribunal and tried for war crimes. So it's not a casual comment, I would suggest."
Later after a lunch break, Durbin told the hearing that a check of Jackson's filings revealed no instance in which she called Rumsfeld or Bush a "war criminal."
Cornyn presses Jackson on same-sex marriage
Sen. John Cornyn, R-Texas, launched into a lengthy set of questions that appeared to be making the case that Obergefell v. Hodges, the case that legalized gay marriage across the country, was faulty.
When asked about gay marriage, Jackson told Cornyn she couldn't comment on the issue of same-sex marriage, since litigation is ongoing.
Cornyn attempted to get Jackson to say it was a person's right if they wanted to hold a "traditional marriage ideology" as part of their religious beliefs.
"Well, Senator, that is the nature of a right. When there is a right, it means that there are limitations on regulation even if means people are regulating pursuant to their sincerely held religious beliefs," said Jackson.
Cornyn asked, "Do you share my concern when court takes on role identifying an enumerated right and creates a new right, creates circumstance for those who hold a traditional belief?"
Jackson replied, "I understand that concern and because there are cases that are addressing these sorts of issues, I'm not in a position to comment about my personal views."
Jackson: Judges are not policymakers
During a wide-ranging discussion with Cornyn, Jackson was asked if she felt judges could or should make policy — to which she answered clearly in the negative.
“I believe that judges are not policymakers. That we have a constitutional duty to decide only cases and controversies that are presented before us,” she said. “Within that framework, judges exercise their authority to interpret the law, and not make the law.”
“So you would agree with me that judges should not be politicians,” asked Cornyn.
“Yes,” Jackson replied.
Jackson: Black woman on Supreme Court would be 'meaningful'
Sen. Dianne Feinstein, D-Calif., asked Jackson about the historical significance of adding another woman — and a Black woman — to the court.
"One of the things that having diverse members of the court does is it provides for the opportunity for role models," Jackson said.
"Since I was nominated to this position, I have received so many notes and letters and photos from little girls around the country who tell me that they are so excited for this opportunity ... because I am a woman, a Black woman, all of those things, people have said, have been really meaningful to them. We want, I think as a country, as a country to believe that they can do things like sit on the Supreme Court."
If confirmed, Jackson would be the sixth woman to ever serve on the high court.
Feinstein called her confirmation the "nearest we have ever come to gender equity on the Supreme Court."
Hearing resumes
At 11:50 a.m. ET, the hearing resumed with questions from Sen. John Cornyn, R-Texas.
Roe v. Wade is 'settled law,' Jackson says
Feinstein asked Jackson if she believes that the 1973 landmark Supreme Court ruling protecting a woman's right to have an abortion is settled as precedent and whether she commits to obey all rules of stare decisis in cases related to abortion.
"I do agree with both Justice Kavanaugh and Justice Barrett on this issue. Roe and Casey are the settled law of the Supreme Court concerning the right to terminate a woman's pregnancy," Jackson said. "They have established a framework that the court has reaffirmed and in order to revisit, as Justice Barrett said, the Supreme Court looks at various factors because stare decisis is a very important principle."
Feinstein followed up by asking whether Roe v. Wade has the status of being a superprecedent.
"All Supreme Court cases are precedential. They're binding and their principles and their rulings have to be followed," Jackson said. "Roe and Casey, as you say, have been reaffirmed by the court and have been relied upon and reliance is one of the factors that the court considers when it seeks to revisit or when it's asked to revisit, revisit a precedent. And in all cases, those the precedents of the Supreme Court would have to be reviewed pursuant to those factors."
In 1992, the Supreme Court reaffirmed the right to have an abortion in the Casey v. Planned Parenthood case. However, Casey also said that states can regulate abortions to protect the mother and the fetus and could make abortions illegal for "viable" fetuses.
Angry Graham on Guantanamo Bay detainees: ‘I hope they all die!'
After Graham questioned Jackson, he and Durbin got into a back-and-forth about the future of detainees at Guantanamo Bay.
Graham grew agitated after Durbin contested his earlier claim that the recidivism rate among enemy combatants who had been held there was 31 percent.
The lengthy exchange climaxed with an angry Graham yelling, “I hope they all die.”
After Durbin claimed that since 2009, the recidivism rate was 5 percent, Graham repeated his original claim and retorted, “Somebody is wrong here.”
Graham peppered Durbin with a pair of rhetorical questions about whether he supported “detention under the law of war for these detainees,” and when Durbin attempted to answer, Graham shot back: “What does it matter!”
“We had them and they got loose and they started killing people,” Graham, growing visibly upset, continued. “I’m suggesting the system has failed miserably and advocates to change the system like she was advocating for, would destroy your ability to protect this country," he said, referring to Jackson.
“We’re at war, this is not some passage of time event,” he added.
“I hope they all die in jail," Graham then yelled, while pointing his finger and waving his hands.
“If they’re going to go back and kill Americans, it won’t bother me one bit if 39 of them die in prison. That’s a better outcome than letting them go,” he continued.
“And if it costs $500 million to keep them in jail, keep them in jail, because they’re going to go back to the fight," Graham said, still waving his hands.
Committee takes 15-minute break
At 11:30 a.m. ET, the Senate Judiciary Committee recessed for a 15-minute break.