The Hearings for Ketanji Brown Jackson: Republicans Behaving Badly

3/26/22

The hearings before the Senate’s Judiciary Committee on the nomination of Judge Ketanji Brown Jackson for the Supreme Court have been quite a spectacle. Let me be specific. A handful of Republican senators deserve to be called out for their grandstanding, focusing on a variety of culture war issues. My comments today are limited to the portion relating to Judge Brown Jackson’s sentencing in cases dealing with child pornography.

At the top of the list of boys behaving badly are Josh Hawley (MO) and Ted Cruz (TX), with Lindsey Graham (SC) and Tom Cotton (AR) playing supporting roles. At this point, it should be widely recognized that these illustrious leaders used their time to admonish Judge Brown Jackson, casting her as being unfit as a Supreme Court Justice based on their common assessment that her sentencing in child pornography cases had been too lenient. I won’t pretend to have anything close to an exhaustive knowledge about the cases in which Judge Brown Jackson has presided, but I think I’ve seen enough to deem the posture of these Senators as being hysterical. Their broadside criticism reflects a cynical effort to spin Jackson’s record, placing her dangerously out of line relative to her peers. Truth be damned.

The hearings were filled with innuendo, with a minimal amount of background detail; but reporting in the NY Times by Alan Feuer filled in many gaps with respect to the case that Josh Hawley highlighted during his segment of questioning. In this case, a gay, 18-year-old high school student had downloaded and subsequently disseminated child pornography. After his arrest, the accused was fully cooperative and expressed deep remorse. Perhaps more critically, he was evaluated by professionals who expressed no concern about “sexual deviation.” Given the facts and circumstances that were offered in evidence at the trial, the youth of the offender, and, undoubtedly, the findings of the psychological evaluation, Jackson sentenced the teen to three months in prison to be followed by more than six years of supervision, post prison. Hawley and Cruz vehemently criticized this sentence as being little more than a slap on the wrist.

We’re talking about a high school kid who downloaded pornography — a gay kid, reportedly, with a disapproving religious family, by the way. He didn’t create the pornography, nor did he ever have any person-to-person sexual encounters, despite entreaties by his undercover investigator. Unquestionably, the behavior of the perpetrator was criminal — and disturbing — but the ideal or even appropriate sentence is largely a matter of judgment that is statutorily left to the discretion of the Judge. Jackson was charged with that responsibility.

In Judge Brown Jackson’s response, she justified her decision as one that followed the law, requiring her to take into account a variety of considerations, including the recommendations by probation boards — recommendations that the Senators hadn’t been aware of at the time of their interrogation. Of course, their incomplete knowledge of the facts and circumstances of the case didn’t’ stop them from their bombastic condemnations. It’s one thing to ask questions. It’s quite another thing to take an aggressive, opinionated position in advance of having full information. Second guessing her without having the information that she had is demagogic.

For Cruz and Hawley et. al. the only acceptable response from Judge Brown Jackson would have been an expression of regret for not handing down more punitive sentences. The presumption — or assertion — that Judge Brown Jackson didn’t appropriately consider the relevant facts and circumstances when determining her sentences or that we’d all suffer the risk that her appointment to the Court would result in the widespread coddling of criminals is unjustified and unwarranted given the relatively limited number of cases cited. These propositions are gratuitous and unworthy of those charged with the role of “advise and consent” for these kinds of appointments.

By any objective measure, Judge Brown Jackson is one of the most qualified supreme court candidates ever to be nominated, and she would bring a diverse set of professional experiences to the Court, complementing those of the current justices. It’s remarkable, for instance, that none of the sitting justices have any experience as a public defender. Jackson would make up for this deficiency. Voting to deny that seat to Judge Brown Jackson would serve as just one more of many indications that the Senate is broken.

Giving the Republicans the benefit of the doubt, it may not be racism. It may simply be a low form of party politics; but however you label it, it stinks. You’d think Republicans as a group — or at least the leadership — would bend over backward to avoid the box that a negative vote on Judge Brown Jackson puts them in; but by the looks of it now, the stink will likely infect all but a tiny minority of the Republicans in the Senate.

What’s needed now is something along the lines of a reconstituted Lincoln Project composed of Republicans willing to denounce the demagogues who are pushing their social agenda to their base and smearing the reputation of a qualified and worthy candidate. I’m not holding my breath, but it would be nice.