GOP attacks on SCOTUS nominee Ketanji Brown Jackson & how to watch hearing today
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Who is Ketanji Brown Jackson
Ketanji Brown Jackson, current District of Columbia Appeals Circuit judge, has her first day of hearings as the Supreme Court nominee today. Jackson is the daughter of an attorney and a teacher, and a product of public education. She attended Harvard, clerked for Justice Stephen Breyer, and served as a federal public defender.
In 2009, Jackson was nominated by Obama to be the vice chair of the U.S. Sentencing Commission. The Senate confirmed her appointment by unanimous consent. She went on to serve as a judge for the U.S. District Court for the District of Columbia in 2012, with the Senate’s consent, and in 2021 was confirmed in a 53-44 vote to the U.S. Court of Appeals for the D.C. Circuit. All 50 members of the Democratic caucus voted in favor, as did Republican senators Susan Collins (ME), Lindsey Graham (SC), and Lisa Murkowski (AK).
As a judge, Jackson’s most high-profile opinions involved the administration of then-president Donald Trump’s administration. In her 2019 opinion ordering White House counsel Donald McGahn to comply with a legislative subpoena, she wrote “Presidents are not kings.”
This means that they do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control. Rather, in this land of liberty, it is indisputable that current and former employees of the White House work for the People of the United States, and that they take an oath to protect and defend the Constitution of the United States…
Today, this Court adds that this conclusion is inescapable precisely because compulsory appearance by dint of a subpoena is a legal construct, not a political one, and per the Constitution, no one is above the law. That is to say, however busy or essential a presidential aide might be, and whatever their proximity to sensitive domestic and national-security projects, the President does not have the power to excuse him or her from taking an action that the law requires. Fifty years of say so within the Executive branch does not change that fundamental truth.
Jackson’s nomination hearings start in the Senate Judiciary Committee today at 11 am eastern. Senators will be given time to question Jackson on Tuesday and Wednesday at 9 am. Then, on Thursday, they should be wrapping up with testimony from outside witnesses, with the American Bar Association, people who know Jackson personally, and others who can speak to her record.
What to expect
Federal sentencing guidelines
Senate Republicans can be expected to bring out a variety of attacks in their questioning of Jackson over the next few days. Let’s start with the most outlandish: Sen. Josh Hawley’s (R-MO) baseless assertion that Jackson is soft on child predators.
Hawley: Judge Jackson has a pattern of letting child porn offenders off the hook for their appalling crimes, both as a judge and as a policymaker. She’s been advocating for it since law school. This goes beyond “soft on crime.” I’m concerned that this a record that endangers our children
The majority of the examples Hawley shares in his Twitter thread are out of context. For example, he included a screenshot of a Harvard Law Review article written by Jackson as a student that encouraged courts to consider possible “retributive” effects of sex offender statutes. While Hawley claims this proves she “questioned making convicts register as sex offenders,” in reality the paragraph in question was about recidivism rates and the most effective form of punishment in child sex cases—cases wherein the perpetrators are often authority figures that victims trust, not anonymous predators. Furthermore, the entire article in question centered on an unresolved legal question at the time: under what circumstances are laws that apply retroactively to convicted sex offenders permissible under the Constitution.
Hawley also attacked Jackson’s record as a member of the Sentencing Commission, which studies and develops sentencing policies for the federal courts, for contemplating whether child porn offenses vary in severity and whether the federal sentencing guidelines adequately reflect the severity of the crime. The evidence is against Hawley on this topic, as well: Jackson is far from alone in questioning a ‘one-size fits all’ approach to criminal sentencing.
In fiscal year 2019, just 30% of non-production child pornography offenders received a sentence that fell within federal guidelines “because just about [every] federal judge realizes these Guidelines are too severe,” [New York University Law Professor Rachel] Barkow wrote on Twitter.
The report Barkow references was unanimously endorsed by the bipartisan Sentencing Commission. One of the members who signed onto the report is now Judge Dabney Friedrich, nominated by Trump and approved by Hawley without a single question about his approval for less-severe sentencing guidelines in certain child porn cases.
Another aspect of the Republican opposition to Jackson we expect to see is casting a negative light on her service as a public defender. This is far from a new position for the GOP; they have smeared other Democratic judicial nominees as being ‘soft on crime’ for their work representing defendants who can’t afford their lawyers.
In Jackson’s case, the Republican National Committee is targeting her for providing legal representation to people imprisoned at Guantánamo Bay.
JACKSON HAS A RECORD THAT INCLUDES DEFENDING TERRORISTS
Jackson worked as a lawyer for several terrorists detained at Guantánamo Bay, including a Taliban intelligence officer who was likely a leader of a terrorist cell.
- Jackson’s advocacy for these terrorists was “zealous,” going beyond just giving them a competent defense.
- Despite Jackson’s claim that she did not get to choose her clients as a public defender, she continued to advocate for Guantanamo terrorists when she went into private practice.
First, indigent persons are entitled to the right of effective counsel under the Sixth Amendment. Attacking a lawyer and judge for upholding the rule of law and staying true to the Constitution is an odd position to take.
Second, the clear implication is that brown people from Muslim countries don’t deserve a “zealous” defense. Again, we see Hawley criticizing her for this despite his advocacy for white people arrested due to their participation in the Jan. 6 insurrection.
Finally, of the 780 detainees held at Guantánamo Bay, only 12 were charged with war crimes. Nearly all have been released.
In fact, even Bush administration officials knew many of the detainees were innocent. Retired Colonel Lawrence B. Wilkerson, chief of staff to former Secretary of State Colin Powell, submitted a sworn declaration in 2010 that a year after 9/11, it was apparent “that many of the prisoners detained at Guantánamo had been taken into custody without regard to whether they were truly enemy combatants, or in fact whether many of them were enemies at all.”
I soon realized from my conversations with military colleagues as well as foreign service officers in the field that many of the detainees were, in fact, victims of incompetent battlefield vetting. There was no meaningful way to determine whether they were terrorists, Taliban, or simply innocent civilians picked up on a very confused battlefield or in the territory of another state such as Pakistan…
A related problem with the initial detention was that predominantly U.S. forces were not the ones who were taking the prisoners in the first place. Instead, we relied upon Afghans, such as General Dostum’s forces, and upon Pakistanis, to hand over prisoners whom they had apprehended, or who had been turned over to them for bounties, sometimes as much as $5,000 per head. Such practices meant that the likelihood was high that some of the Guantánamo detainees had been turned in to U.S. forces in order to settle local scores, for tribal reasons, or just as a method of making money. I recall conversations with serving military officers at the time, who told me that many detainees were turned over for the wrong reasons, particularly for bounties and other incentives.
The GOP would like the American people to believe these individuals, some wrongly imprisoned—and tortured—on an extrajudicial island, do not deserve a “zealous” legal defense.
- Further reading: “A crop of Obama-era national security officials are defending Ketanji Brown Jackson’s representation of Guantanamo Bay detainees,” Politico.