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Jackson indicates affirmative action case recusal plans as hearing questions wrap

Supreme Court nominee Ketanji Brown Jackson wrapped two days of marathon questioning from the Senate Judiciary Committee to Democratic praise and little apparent sign of GOP support on the panel.

Jackson’s second day of questions touched on similar themes to the previous day’s, including Republican scrutiny of her sentencing record in child pornography cases and her representation of Guantanamo Bay detainees. Democrats defended Jackson, repeatedly emphasizing that her record on child pornography sentencing is in line with the vast majority of federal judges, while Republicans sparred with Judiciary panel chair Sen. Dick Durbin (D-Ill.) over document requests related to the issue.

The hearing featured its share of strained exchanges between Jackson and Republicans but also found the nominee getting emotional as Democrats highlighted the historic nature of her bid to become the first Black woman Supreme Court justice.

The committee will conclude the confirmation hearing Thursday with testimony from outside witnesses, among them American Bar Association representatives who will discuss why the group gave Jackson its highest rating: unanimously well qualified.

Durbin also announced Wednesday night that Jackson’s nomination is officially on track for a vote in the full panel on or after April 4. Senate Democrats hope to hold a final floor vote to confirm her before leaving Washington for a recess at the end of that week.

The most concrete development during Jackson’s second day of questions and answers was her indication that she plans to bow out of a high-profile affirmative action case that the high court is set to take up this fall involving Harvard — where she sits on a governing board.

Jackson told Sen. Ted Cruz (R-Texas) that she does not intend to participate in the case brought by a group which complained that Harvard’s undergraduate admissions policies discriminate against Asian Americans in favor of Black Americans and Latinos.

“That is my plan, senator,” said Jackson, a Harvard College and Harvard Law School graduate who has served on the university’s Board of Overseers since 2016 and on that panel’s executive committee since 2019.

The high court announced in January that it plans to take up the long-running lawsuit, along with a similar case the same group filed against the University of North Carolina. Both cases are seen as potential vehicles for the conservative-dominated Supreme Court to bring an end to the efforts of schools to improve racial diversity by boosting minority candidates in the admissions process.

Senate Republicans on Wednesday continued to accuse her of not being harsh enough in her sentencing when it comes to people who download child pornography.

In a particularly tense exchange with Sen. Lindsey Graham (R-S.C.), Jackson said the internet has made it so easy to download large volumes of child pornography that federal sentencing guidelines no longer make sense in their recommendation of strong sentences for possessing large numbers of images or for using a computer in the crime.

“The guidelines related to child pornography were drafted at a time when a computer was not used for the majority, if not all these kinds of horrible crimes,” Jackson told Graham. “On the internet, with one click, you can receive, distribute tens of thousands [of images]. You can be doing this for 15 minutes, and all of a sudden you are looking at 30, 40, 50 years in prison.”

Graham leapt in to argue that sort of punishment would be well-deserved. In a further sign that he may be unlikely to support Jackson, he also grew visibly angry as he relitigated Justice Brett Kavanaugh’s confirmation, asking Jackson if she’d watched those 2018 hearings. Graham accused Democrats of not bringing up sexual assault allegations that Kavanaugh vehemently denied until the end of his confirmation.

“He was ambushed, how would you feel if we did that to you?” Graham asked Jackson. “I would never do that to you.”

As she did during her appearance in the Judiciary Committee on Tuesday, Jackson continued to emphasize the lectures she gives defendants at sentencing about the consequences of their actions, particularly the effect on those victimized as children. She also noted that convicts in child pornography cases are subjected to monitoring of their computer use for years.

A flabbergasted Graham dismissed her approach as naive, declaring that “the best way to deter people from getting on a computer” and viewing child porn is to “put their ass in jail, not supervise their computer usage.”

Later in the hearing, Jackson’s patience with the protracted GOP questioning on her child pornography sentences seemed to expire.

When Sen. Josh Hawley (R-Mo.) asked Jackson if she regretted providing a three-month sentence in such a case, Jackson shot back: “What I regret is that in a hearing about my qualifications to be justice on the Supreme Court, we have spent a lot of time focusing on this small subset of sentences.”

In his opening remarks, Durbin also sought to counter Republican attacks. He emphasized that Jackson’s sentencing on child pornography is in line with “80 percent of federal judges” and pointed out that Hawley supported GOP-appointed judges who have similar records.

GOP senators also zeroed in on Jackson’s representation of Guantanamo Bay detainees, accusing her of alleging extreme impropriety at that time by top U.S. officials, like then-President George W. Bush and Defense Secretary Donald Rumsfeld.

In several petitions brought on behalf of Guantanamo Bay inmates roughly two decades ago, Jackson alleged that the U.S. government violated the laws of war by torturing those terrorism suspects and Afghan fighters. Republican senators charged Tuesday that she’d branded Bush and Rumsfeld as “war criminals” — although that phrase doesn’t actually appear in the filings.

Durbin defended Jackson, noting that the claims were not directed at Bush or Rumsfeld personally.” Jackson said that as an attorney she had a legal duty to make all viable arguments on behalf of the men she was assigned to represent.

“Public defenders don’t choose their clients and, yet, they have to provide vigorous advocacy,” she said. “That is the duty of a lawyer.”

Some Republican senators took aim at her more recent judicial actions. Sen. Thom Tillis (R-N.C.) probed Jackson about an opinion she authored at the start of the pandemic as a judge on D.C.’s federal district court, in which she seemed to suggest that all prisoners in the D.C. jail had a strong argument for release due to the increased danger of catching the virus in those close quarters.

Jackson told Tillis that in that 21-page opinion, issued in response to a drug case defendant who had pleaded guilty and was awaiting sentencing, that she ultimately denied the request for release.

“It was a line in an opinion, and the beginning of the Covid-19 pandemic was a really, obviously, horrible and difficult time for all of us,” Jackson said, noting that the virus was “rampant” in jails and prisons and no vaccine was then available.

During the hearing, GOP senators complained that they had less access to the records of the criminal cases Jackson handled during her eight years as a district court judge. Democratic senators cited data Tuesday about probation office recommendations on her cases, particularly those involving child pornography or abuse.

But those records are not readily available in the public case files, sometimes emerging only orally during sentencing hearings. GOP senators demanded equal access to whatever records the White House is tapping into to defend Jackson. In a letter led by Cruz and signed by every Judiciary Republican except Sen. Ben Sasse (R-Neb.), Republican senators requested Durbin “adjourn the nomination hearing” until more documents are released.

Durbin said the panel’s Democratic members only got the probation recommendation data Tuesday and it was available to any senator who asked for it, although the White House shared some of the information with reporters after Hawley launched his attack on Jackson’s sentencing record last week. He responded that making pre-sentencing reports available for public consumption would be “reprehensible and dangerous.”

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