GOP attacks don't derail Jackson's path to Supreme Court

A closeup of Judge Ketanji Brown Jackson's face as a tear runs down it

March 23, 2022 Updated 10:25 PM PT

WASHINGTON — Supreme Court nominee Ketanji Brown Jackson wrapped up her Senate testimony Wednesday, portraying herself as a well-grounded, mainstream judge who will be guided by the law and precedent, not ideology.

Despite several tense exchanges with Republican senators who questioned some sentences she handed down while serving as a federal judge, Jackson, the first Black woman nominated to the high court, emerged from the Senate Judiciary Committee hearing with no surprises or missteps that might endanger her path to confirmation.

Jackson told senators she has no “overarching theory” or philosophy akin to the originalism espoused by conservative justices. She said she would instead follow the model of retiring Justice Stephen G. Breyer, her former boss, whose seat she is expected to fill.

Her words suggested she would be a moderate liberal on the high court, more like Breyer than Justice Sonia Sotomayor, and more inclined to work with her colleagues than to denounce them in fierce dissents.

“I look at the facts, the text of the law and principles” set by court precedents, she said of her approach. “I look at cases impartially, and I understand my limited role.”

She repeatedly said she would “stay in [her] lane” as a judge, not make policy that is better left to politicians.

Jackson’s testimony was overshadowed at times by Republicans.

Sens. Josh Hawley of Missouri, Ted Cruz of Texas and Tom Cotton of Arkansas asserted Jackson was unduly sympathetic to defendants who were convicted of possessing child pornography. As evidence, they cited several cases in which she handed down shorter prison terms than prosecutors had recommended.

On Monday, Iowa’s Sen. Charles E. Grassley and other senior Republicans opened the Judiciary Committee hearing by pledging the public would not witness a “spectacle” like the 2018 confirmation hearing for then-nominee Brett M. Kavanaugh.

But those who tuned in to the hearings heard Cruz, Hawley, Cotton and Sen. Lindsey Graham repeatedly describe in detail the pornography that they — and the judge — called shocking and vile.

Jackson calmly explained the process she followed in deciding the punishment for a defendant who possessed pornography, but who had not personally abused children. But after repeating her explanation more than half a dozen times, she refused to say more.

For the record:

10:24 p.m. March 23, 2022A previous version of this article mistakenly said it was Sen. Tom Cotton who asked Jackson whether she regretted the sentence she handed down in a certain case. Sen. Josh Hawley asked the question.

At one point Wednesday, Hawley asked whether she regretted a particular sentence in one such case.

“What I regret is that in a hearing about my qualifications to be a justice on the Supreme Court, we have spent a lot of time focusing on this small subset of my sentences,” she said.

The committee has been strictly divided along partisan lines in recent years. None of its Democrats supported former President Trump’s three nominees, and it appears none of its Republicans are likely to vote for Jackson.

But a Gallup poll taken in early March indicated that she had the support of 58% of Americans, the highest approval of any Supreme Court nominee since 2005, when John G. Roberts Jr., the current chief justice, had 59% approval.

Trump’s successful nominees had less public support, Gallup said. Polls indicated Justice Amy Coney Barrett was supported by 51% at the time of her nomination in October 2020, Justice Neil M. Gorsuch had the support of 45% in 2017, and Justice Brett M. Kavanaugh was supported by 41% in 2018.

The latest poll also found the public sharply divided along partisan lines. While 88% of Democrats said they approved of President Biden’s choice for the high court and said she should be confirmed, only 31% of Republicans agreed.

“There was a time a nominee like Jackson would have been confirmed overwhelmingly,” said Sheryll Cashin, a professor at Georgetown Law. “She strikes me as very moderate, if not conservative, in her attempt to hold on to traditions that uphold the legitimacy of the project of judging.”

Lawmakers and aides listen during a hearing

Cashin noted that Breyer says he believes in a “living Constitution” — in which its meaning can evolve over time — but Jackson refused to adopt that characterization.

On the current court, Justices Clarence Thomas, Samuel A. Alito Jr. and Gorsuch, the three most conservative members, often say that rely on the original meaning of a constitutional provision when deciding cases. Other members of the court — liberals and conservatives — say they begin with the words of the Constitution, but those alone do not decide a case.

Jackson described her approach when discussing the issue of searches and seizures in the era of smartphones. The 4th Amendment forbids “unreasonable searches” by the government, and it generally requires police to have a search warrant before they enter a home or look through someone’s papers and files.

Jackson cited the 2014 case of Riley vs. California, where the court decided officers need a warrant to download the contents of a smartphone. She said that even though the framers of the Constitution did not imagine smartphones, the justices reasoned that people have vast amounts of personal information on their phones that they used to keep at home. Therefore, it should remain private unless officers can show evidence of a crime in progress, she said.

When pressed, Jackson said she did not want to attach a label to her approach, other than that she would be fair, neutral and pragmatic.

Judge Ketanji Brown Jackson pictured from behind as she prepares to sit under bright lights in a hearing room

Jackson, 51, has worked as a federal judge for most of the last decade, most recently as an appellate court judge in Washington, D.C. Before that she was a federal public defender; she would be the first Supreme Court justice with such experience.

Jackson’s comments about her methodology for deciding cases may not prove a reliable guide for the future. That’s because the job of a Supreme Court justice is quite unlike that of a district judge.

In district court, the judge’s job is to apply the facts to the law. But at the high court, the law itself is in dispute. The justices typically agree to hear cases only when lower court judges are divided on the law.

A graduate of Harvard Law School, Jackson told the committee she intended to recuse herself from an affirmative action case against Harvard University if she’s confirmed to the Supreme Court.

Democrats rallied behind Jackson and praised her composure and perseverance in response to the Republican attacks.

She showed “grace under pressure,” said committee Chair Richard J. Durbin of Illinois.

“There are millions of people in this country watching you and cheering for you,” said Sen. Jon Ossoff of Georgia.

New Jersey’s Cory Booker, the only Black senator on the committee, gave Jackson an emotional sendoff.

“You got here like every Black woman in America who’s gotten anywhere has done,” he said as Jackson grabbed a tissue and wiped away a tear. “You have earned this spot. You are worthy. You are a great American.”

The committee will convene again Thursday to hear from outside witnesses who support or oppose the nominee.

Times staff writer Arit John contributed to this report.