Lindsey Graham, Ted Cruz storm out of SCOTUS nominee hearings after made-for-Fox-News performances
Sen. Lindsey Graham used the majority of his first day’s questioning trying to settle political scores with Democrats. He began his questioning on Tuesday by asking about Jackson’s religion, using it as a vehicle to criticize how he perceived Democrats attacked Amy Coney Barrett (clip):
Graham: What faith are you, by the way?
Jackson: Senator, I am protestant. Nondenominational.
Graham: Could you fairly judge a catholic?
Jackson: Senator, I have a record of that.
Graham: How important is your faith to you?
Jackson: Personally, my faith is very important, but as you know, there is no religious test in the Constitution under Article Six, and it is very important to set aside one’s personal views and the role of a judge.
Graham: I couldn’t agree with you more, and I believe you can. On a scale of one to 10, how faithful would you say you are in terms of religion? I go to church probably three times a year so that speaks poorly of me, but do you attend church regularly?
Jackson: I am reluctant to talk about my faith in this way it, just because I want to be mindful of the need for the public to have confidence in my ability to separate out my personal views.
Graham: How would you feel if a senator up here said, ‘your faith and dogma lives loudly within you and that is a concern’? How would you feel if somebody up here on our side said, ‘you attend church too much for me and your faith is a little bit different to me,’ and they would suggest it would affect your decision? Would you find that offensive? I would if I were you. I found it offensive when they said about Judge Barrett… Just imagine what would happen if people on late-night television called you a f-ing nut, speaking in tongues, because you practice the Catholic faith in a way they couldn’t relate to or found uncomfortable.
Graham then asked Jackson if she knows former D.C. Circuit Court Judge Janice Rogers Brown (clip), as a way to introduce the fact that Democrats filibustered her nomination to the D.C. court under President George W. Bush in 2003. Democrats felt that Brown was too extreme. Republicans invoked the eventually-defeated filibuster in an attempt to prove that Democrats are actually against Black women becoming judges.
Graham: I guess the reason I am bringing all this up is it gives me a chance to remind this committee and America, there are two standards going on here. If you are an African-American conservative woman, you are fair game to have your life turned upside down, to be filibustered, no matter how qualified you are. And if you express your faith as a conservative, all of the sudden you are a f-ing nut…I hope when this is over people will say you are at least well treated, even if we don’t agree with you.
Finally, Graham brought up the fact that his nominee of choice, Judge Michelle Childs of South Carolina (his home state), wasn’t chosen by Biden (clip).
Graham: Did you notice the people from the left were trying to destroy michelle childs?
Jackson: A lot of people were supporting various people for this nomination.
Graham: So you’re saying you didn’t know there was a concerted effort to disqualify Judge Childs from South Carolina because she was ‘union-busting,’ ‘unreliable,’ Republican-in-disguise?
Jackson: Senator, I am a sitting judge. I was focused on my cases. I did not know that.
Graham: Every group that wants to pack the court, that believes this court is a bunch of right wing nuts who are going to destroy America, that consider the constitution trash—all wanted you picked. This is all I can say: the fact that so many of these left-wing radical groups that would destroy the law as we know it, declared war on Michelle Childs, and supported you, is problematic for me.
On Wednesday, Graham appeared even angrier, continuously interrupting Jackson and going over his allotted time (clip).
Jackson: With respect to the computer, one of the most effective deterrents [to distributing child pornography] is one that I imposed in every case and that judges across the country impose in every case, which is substantial, substantial supervision—
Graham: Wait. You think it is a bigger deterrent to take somebody who is on a computer, looking at sexual images of children in the most disgusting way, is to supervise their computer habit versus putting them in jail?
Jackson: I didn’t say versus.
Graham: That’s exactly what you said. I think the best way to deter people from getting on a computer and viewing thousands and hundreds and over time, maybe millions of children being exploited and abused every time somebody clicks on, is to put their ass in jail, not supervise their computer usage.
Jackson: Senator, I wasn’t talking about versus.
Graham: You just said you thought it was a deterrent to supervise them. I don’t think it’s a deterrent. I think the deterrent is putting them in jail.
Chairman Durbin: Would you let her respond?
Graham: Yes. Does sentencing have a deterrent component?
Jackson: Yes, senator, deterrence is one of the purposes of punishment. And Congress has directed courts to consider various means of achieving deterrence. One of them, as you said, is incarceration. Another, as I tried to mention, was substantial periods of supervision once the person—
Graham: If I could ask you, in your view, it’s more of a deterrent to have somebody substantially supervised in terms of their computer use who is looking at child pornography than it is to put them in jail?
Jackson: Senator, I’m not saying it’s more or less, but—
Graham: That’s exactly what you’re saying.
Somehow, in the midst of this exchange, Graham managed to bring up his grievances over Supreme Court Justice Brett Kavanaugh’s hearing:
Graham: I know I’m out of time. Listen, you’ve lived an incredible life. But here’s one thing that won’t happen to you after we wrap up this. How would you feel if I had a letter from somebody accusing you of something, a crime, or misconduct, for weeks, and i give it to senator durbin just before this hearing’s over and not allow you to comment on the accusation? how would you feel about that?
Jackson: Senator, I’m not sure. I don’t understand the context of the question.
Graham: Did you watch the Kavanaugh hearings?
Jackson: No, sir.
Graham: Are you familiar with what happened in the Kavanaugh hearings?
Durbin: Senator, your time is up.
Graham: Please, Mr. Chairman. She filibustered every question I had and she has the right to give an answer but I’m trying to make a point in 20 minutes. You were here for kavanaugh. She is confused about what happened. People on the other side had an accusation against Judge Kavanaugh, in high school he sexually assaulted somebody. The rest was history. That was known to the people on the other side and never revealed during the meetings they had with Judge kavanaugh. He was ambushed. How would you feel if we did that to you?
Jackson: Senator, I appreciated the kindness that each of you has shown me to see me in your offices, to talk to me about my approach.
Graham: Our 15 minute exchange was very pleasant, you are a nice person you have a lot to be proud of. I would never do that to you. If I have information that is sketchy as best, I would share it with you. I would not disclose it at the last minute of the last day of the hearing when I have already given it to the newspapers so the whole country can read about it before you said a word.
Durbin: Senator, she has nothing to do with—
Graham: I’m asking her how she may feel about what y’all did.
Durbin: You won’t even let her finish her response. Your time is expired, and I will give her an opportunity to finally complete an answer.
Graham: Just answer the question.
Jackson: Senator, I don’t have any comments on what procedures took place in this body regarding Kavanaugh. what I would like to answer is your point about my sentencings in child pornography cases.
At the end of Graham’s already-extended time, Chairman Durbin pointed out that it is Congress’s fault that laws governing child pornography have not been updated in more than a decade, causing Graham to storm out (clip).
Sen. Ted Cruz used his first day of questioning to focus on Critical Race Theory and question Jackson on anti-racism books at Georgetown Day School (clip), where she serves on the board. Georgetown Day School was the first racially integrated school in the nation’s capital and is currently a private school with a “progressive curriculum.”
Cruz: All of us agree that no one should be discriminated against because of race. When you just testified a minute ago that you do not know that critical race theory was taught in K-12, I will confess, I find that statement a little hard to reconcile. If you look at the Georgetown Day School curriculum, it is filled and overflowing with Critical Race Theory. Among the books that are either assigned or recommended, they include “Critical Race Theory: An Introduction.” They include “The End of Policing,” an advocacy for abolishing the police. They include “How to be an Antiracist.” They include stacks and stacks of books. I will tell you the ones that were most stunning. They include a book called “Antiracist Baby” by Ibram Kendi. There are portions of this book that I find really remarkable. One portion of the book says babies are taught to be racist or antiracist, there is no neutrality. Another portion of the book they recommend that babies confess when being racist. This is a book that is taught at Georgetown Day School to students from pre-K to second grade. Do you agree with this book that is being taught with kids that babies are racist?
Jackson: Senator, I do not believe that any child should be made to feel as though they are racist, or though they are not valued, or though they are less than, that they are victims, they are oppressors. I do not believe in any of that. but I will say, is that when you asked me whether or not this was taught in schools, Critical Race Theory, my understanding is that Critical Race Theory as an academic theory is taught in law schools. To the extent that you are asking the question, I understood you to be addressing public schools. Georgetown Day school, just like the religious school that Justice Barrett was a part of, is a private school.
Cruz: So you agree that Critical Race Theory is taught at Georgetown Day School?
Jackson: I don’t know because the board does not control the curriculum, the board does not focus on that. That is not what we do as board members. So, I’m actually not sure.
On the second day of questioning, Cruz wondered if he could decide he was a woman or an Asian man “under modern leftist sensibilities” (clip). He then got angry and started yelling at Chairman Durbin for cutting him off at two minutes over his allotted time (clip).
Sen. Marsha Blackburn used her time on the first day of questioning to focus on abortion and gender (clip).
Blackburn: And in fact, you attacked pro-life women, and this was in a brief that you wrote. You described them and I’m quoting ‘hostile, noisy crowd of in your face protesters’. End quote. And you advocated against these women’s First Amendment right to express their sincerely held views regarding the sanctity of each individual life. And I’m a pro-life woman. 79% of the American women support restrictions of some type on abortion. And so I find it incredibly concerning that someone who is nominated to a position with life tenure on the Supreme Court holds such a hostile view toward a view that is held as a mainstream belief that every life is worth protecting. So how do you justify that incendiary rhetoric against pro-life women?
Jackson: Thank you, Senator. The brief that you’re referring to, um, was a brief that I filed on behalf of clients, who were clients of my law firm. This is in, I believe, 1999 or 2000. Maybe 2000 or 2001, I was an associate at a law firm. And I had appellate experience because I had just finished my Supreme Court lock clerk position. Um, and in the context of my law firm, um I was asked to work on a brief concerning a buffer zone issue in Massachusetts. At the time, there were laws protecting women who wanted to enter clinics and there was a First Amendment question about the degree to which there had to be room around them to enter the clinic.
Blackburn: Right, I understand all of that. I’m asking about the rhetoric.
Jackson: Senator, I drafted a brief along with the partners in my law firm who reviewed it, and we filed it on behalf of our client. To advance our clients’ arguments that they wanted to make in the case.
Blackburn: Let me ask you this when you go to church and knowing their pro-life, women there, 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?
Jackson: Senator, that was a statement in a brief made, an argument for my client. It’s not the way that I think of characterized people.
Blackburn then went on to call Roe v. Wade “an awful act of judicial activism” that has “cost the lives of over 63 million unborn children,” before transitioning to ask Jackson to define “woman” (clip).
Blackburn: Can you provide a definition for the word woman?
Jackson: Can I provide a definition? No.
Jackson: I can’t.
Blackburn: You can’t?
Jackson: Not in this context, I’m not a biologist.
Blackburn: The meaning of the word woman is so unclear and controversial that you can’t give me a definition?
Jackson: Senator, in my work as a judge, what I do is I address disputes. If there’s a dispute about a definition, people make arguments and I look at the law and I decide, so I’m not—
Blackburn: The fact that you can’t give me a straight answer about something as fundamental as what a woman is underscores the dangers of the kind of progressive education that we are hearing about.
Sen. Tom Cotton attempted to get Jackson to opine on law enforcement and policing during his questioning time (clip), asking if the U.S. “needs more police or fewer police” and if “7.2 months is too long or too short for someone convicted of rape.” She responded:
Jackson: Senator, respectfully, I just wanted to remark on your previous question and your statement that these are not difficult questions. It’s not that they are difficult questions, it is that they are not questions for me. I am not the Congress. I am not making policy around sentencing. My job is to look in a particular case and decide what the penalty should be within the range that Congress prescribes.
The following day, Cotton posed loaded questions about Jackson’s work defending detainees at Guantanamo Bay (clip).
Cotton: Do you think America would be safer or less safe if we released all the detainees at Guantanamo Bay?
Jackson: Senator, I’m trying to figure out how to answer that question. 9/11 was a terrible attack on our country and the executive branch, pursuant to authority that the Supreme Court said it had, designated people as enemy combatants and sent them to Guantanamo Bay. The Supreme Court also said that anybody who was so detained could seek review of their detention and as a federal public defender my role and responsibility was to make arguments in defense of the Constitution…
Cotton: Okay so so, no opinion on whether America would be safer or less safe if we released all the detainees from Guantanamo Bay?
Jackson: Senator, America would be less safe if we don’t have terrorists out running around attacking this country. Absolutely. America would also be more safe in a situation in which all of our constitutional rights are protected. This is the way our scheme works. This is how the Constitution that we all love operates. It’s about making sure that the government is doing what it’s supposed to do in a time of crisis. As Justice Gorsuch said, the constitution is not suspended in times of crisis. The government still has to follow the rules and so criminal defense lawyers make sure that in times of crisis the government is following the rules.
The good moments
Chairman Durbin gave Jackson an opportunity to speak about her service as a public defender for Guantanamo Bay detainees (clip):
Durbin: Judge Jackson, we have heard criticism from some about your previous work representing detainees at Guantanamo Bay. In fact, For years we’ve heard criticisms leveled against lawyers who have provided Guantanamo detainees with legal representation. This criticism misses one critical point: the right to counsel is a fundamental part of our constitutional sentence system, even for the most unpopular defendants…I want to give you an opportunity to address this issue because it applies not just to Gitmo detainees to your work as a public defender…
Jackson: Federal public defenders don’t get to pick their clients. They have to represent whoever comes in. And it’s a service. That’s what you do as a federal public defender. You are standing up for the constitutional value of representation.
Sen. Cory Booker provided the most emotional moment of the week, speaking about the joy he feels at this historic moment (start of his time and specific moment):
Booker: This is what you and I know. Any one of us senators could yell as loud as we want that Venus can’t return a serve. We can yell as loud as we want that Beyonce can’t sing. We could yell as much as we want that astronaut Mae Jameson didn’t go all that high but you know what: they got nothing to prove.
Booker: As it says in the bible let the work I’ve done speak for me. Well, you have spoken!
Booker: …Your family and you speak to service, service, service. And i’m telling you right now, I’m not letting anybody in the senate steal my joy! I told you this at the beginning, I’m embarrassed it happened earlier today – I just look at you and I start getting full of emotion!
Sen. Sheldon Whitehouse used his time to talk about dark money in the courts. Day one of questioning and day two.