Ketanji Brown Jackson’s confirmation hearing has concluded, and it’s widely expected that the Senate will confirm her nomination, albeit with a very narrow margin. Compared to other recent hearings, Brown’s was somewhat muted. She did face some comical questions, however: one senator asked her to rate the strength of her faith; another asked her if babies are racist; another asked her to define ‘woman.’
The questions underlined the current nature of senate confirmation hearings. They have become theatres of partisan warfare, as senators use the guise of a Supreme Court hearing to advance political agendas.
Still, some questions asked may have raised doubts over Ketanji Brown’s character – questions we have taken the liberty to answer.
Brown has vowed to remain impartial, despite strong suggestions that she’ll join the liberal side of the Supreme Court
“I have been a judge for nearly a decade and I take my responsibility to be independent very seriously,” Ketanji said on the opening day of her confirmation hearing. “I decide cases from a neutral posture.”
Some senators suggested that Jackson is an ‘activist judge’ – a judge imposing her preferences in her decisions. Ketanji stated that she’s fully aware of her judicial limits and has a methodology preventing her from overstepping. “I am trying in every case to stay in my lane,” she said.
Politicians only complain of judicial activism when it interferes with their political ideologies. Brown reiterated that she would remain impartial, though, despite not saying it out loud, Democrats hope that she’s activist enough to support their agenda.
Ketanji Brown is expected to join the liberal wing of the Supreme Court. She replaces a liberal judge, so her confirmation won’t affect the 6-3 conservative balance of the court.
Nevertheless, as Ketanji Brown admitted, dissenting decisions sometimes form the basis of law in the future; a dissenting decision may not affect the court’s decision, but it may prove significant later on. Brown gave the example of Justice Harlan’s dissent in Plessy v Ferguson:
“All of the other justices agreed with the proposition of ‘separate but equal,’ and he said ‘no’ in a dissent. And his dissent generations later became … the blueprint for Justice Marshall to make arguments that led to Brown v. Board [of Education of Topeka].”
Despite being conservative-leaning, the Supreme Court often decides cases unanimously: nearly half of the cases over the past decade received unanimous decisions. Therefore, Jackson won’t always be on the dissenting side.
Ketanji has sentenced child offenders in line with other federal judges
In his opening statement, Senator Josh Hawley of Missouri read out seven cases heard by Brown, which demonstrated inconsistencies between Ketanji’s sentences and existing sentencing guidelines.
“What concerns me, and I’ve been very candid about this, is that Judge Jackson handed down a lenient sentence that was below the guidelines recommended,” Hawley said. Hawley suggested that Ketanji was ‘soft on crime’ and particularly easy on child sex offenders.
“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,” Ketanji said. She expressed her disdain for sex offenders and explained that her sentences conflicted with Congress’ sentencing guidelines because the guidelines failed to change with the evolving nature of the crimes.
“As it currently stands the way the law is written, the way that Congress has directed the sentencing commission appears to be not consistent with how these crimes are committed and therefore there’s extreme disparity,” Jackson said.
Senator Hawley stated that during her time as a member of the United States Sentencing Commission, Ketanji advocated for eliminating mandatory minimum sentences for child porn. In truth, the bipartisan commission recommended to Congress that the existing guidelines were too severe for some offenses and too lenient for others.
“We worked by consensus, and that is the tradition of the sentencing commission,” Judge William H. Pryor, a committee member alongside Brown, told The New York Times. “Virtually all of our votes were unanimous and data-driven.”
Hawley responded to a Washington Post fact-check on the matter by saying: “As for the other Commissioners who supported this bad recommendation, they probably shouldn’t be on the Supreme Court either.”
Senator Marsha Blackburn highlighted Jackson’s inclination to sentence below federal outlines. However, this isn’t uncommon among federal judges, as Ohio State University law professor Douglas A. Berman pointed out on his blog.
Berman stated that federal judges rarely follow federal sentencing guidelines for child sexual imagery, which ‘are widely recognized as dysfunctional and unduly severe.’ “If and when we properly contextualize Judge Jackson’s sentencing record in federal child porn cases, it looks pretty mainstream,” he added.
Ketanji Brown didn’t choose to represent Guantanamo Bay detainees
If confirmed, Ketanji Brown will be the first former public defender to become a United States Supreme Court. Being a public defender is part of the legal profession and therefore has no bearing on Ketanji’s performance as a judge.
However, it just so happens that she represented Guantanamo Bay detainees during her time as a public defender. Some lawmakers raised concerns that Brown provided ‘free legal services to help terrorists get out’ of the facility.
John Cornyn of Texas asked why Jackson named former Defense Secretary Donald Rumsfeld and former President George W. Bush ‘war criminals.’ “Why would you do something like that? It seems so out of character,” John said.
Jackson said that she needed to peruse the document before commenting on the matter, using a tactic of evasion popularized by Justice Ruth Bader Ginsburg and exploited expertly by Justice Amy Coney Barrett during her confirmation hearing.
“Justice Jackson took very few solid positions on anything remotely controversial,” Paul M. Collins Jr., a political scientist at the University of Massachusetts, told The New York Times. “In fact, it seems she closely studied how Justice Barrett handled the committee, and repeatedly referred to Barrett’s responses when dodging the senators’ questions.”
Ketanji Brown reiterated that public defenders don’t get to choose who they represent. “Federal public defenders do not get to pick their clients,” she said. Brown described legal representation, even for the most heinous criminals, as a ‘core constitutional value.’
Brown said that she never met the four men she was assigned to represent. The men were never tried – the charges were dropped, and they were set free.