What to expect: Hearings for first Black woman nominated to high court

On Monday, Senate hearings begin for Ketanji Brown Jackson, the first Black woman nominated to the Supreme Court. What are the stumbling blocks to her nomination?

First Look

Judge Ketanji Brown Jackson, the first Black woman nominated to the Supreme Court, is going before the Senate Judiciary Committee with the path to her historic confirmation seemingly clear.

Committee hearings begin Monday for the 51-year-old Jackson, a federal judge for the past nine years. She is expected to present an opening statement late in the day, then answer questions from the committee's 11 Democrats and 11 Republicans over the next two days.

She appeared before the same committee last year, after President Joe Biden chose her to fill an opening on the federal appeals court in Washington, just down the hill from the Supreme Court.

Her testimony will give most Americans, as well as the Senate, their most extensive look yet at the Harvard-trained lawyer with a resume that includes two years as a federal public defender. That makes her the first nominee with significant criminal defense experience since Thurgood Marshall, the first Black American to serve on the nation's highest court.

The American Bar Association, which evaluates judicial nominees, on Friday gave Jackson’s its highest rating, unanimously “well qualified.”

Janette McCarthy Wallace, general counsel of the NAACP, said she is excited to see a Black woman on the verge of a high court seat.

“Representation matters,” Wallace said. “It's critical to have diverse experience on the bench. It should reflect the rich cultural diversity of this country.”

It's not yet clear how aggressively Republicans will go after Jackson, given that her confirmation would not alter the court's 6-3 conservative majority.

Is Jackson soft on crime?

Still, some Republicans have signaled they could use Jackson's nomination to try to brand Democrats as soft on crime, an emerging theme in GOP midterm election campaigns. Biden has chosen several former public defenders for life-tenured judicial posts. In addition, Jackson served on the U.S. Sentencing Commission, an independent agency created by Congress to reduce disparity in federal prison sentences.

Sen. Josh Hawley, R-Mo., highlighted one potential line of attack. “I’ve noticed an alarming pattern when it comes to Judge Jackson’s treatment of sex offenders, especially those preying on children,” Hawley wrote on Twitter last week in a thread that was echoed by the Republican National Committee. Hawley did not raise the issue when he questioned Jackson last year before voting against her appeals court confirmation.

The White House pushed back forcefully against the criticism as “toxic and weakly presented misinformation.” Sentencing expert Douglas Berman, an Ohio State law professor, wrote on his blog that Jackson’s record shows she is skeptical of the range of prison terms recommended for child pornography cases, “but so too were prosecutors in the majority of her cases and so too are district judges nationwide.” (More below on fact checking Republican criticism of Jackson.)

Hawley is one of several committee Republicans, along with Sens. Ted Cruz of Texas and Tom Cotton of Arkansas, who are potential 2024 presidential candidates, and their aspirations may collide with other Republicans who would just as soon not pursue a scorched-earth approach to Jackson's nomination.

A Biden campaign pledge

Biden chose Jackson in February, fulfilling a campaign pledge to nominate a Black woman to the Supreme Court for the first time in American history. She would take the seat of Justice Stephen Breyer, who announced in January that he would retire this summer after 28 years on the court.

Jackson once worked as a high court law clerk to Breyer early in her legal career.

Democrats who control the Senate by the slimmest of margins are moving quickly to confirm Jackson, even though Breyer's seat will not officially open until the summer. They have no votes to spare in a 50-50 Senate that they run by virtue of the tiebreaking vote of Vice President Kamala Harris.

But they are not moving as fast as Republicans did when they installed Amy Coney Barrett on the court little more than a month after the death of Justice Ruth Bader Ginsburg and days before the 2020 presidential election.

Barrett, the third of President Donald Trump's high court picks, entrenched the court's conservative majority when she took the place of the liberal Ginsburg.

Last year, Jackson won Senate confirmation by a 53-44 vote, with three Republicans supporting her. It's not clear how many Republicans might vote for her this time.

Her personal story

Jackson is married to Patrick Johnson, a surgeon in Washington. They have two daughters, one in college and the other in high school. She is related by marriage to former House Speaker Paul Ryan, R-Wis., who also was the Republican vice presidential nominee in 2012. Ryan has voiced support for Jackson's nomination.

Jackson has spoken about how her children have kept her in touch with reality, even as she has held a judge's gavel since 2013. In the courtroom, she told an audience in Athens, Georgia, in 2017, “people listen and generally do what I tell them to do.”

At home, though, her daughters “make it very clear I know nothing, I should not tell them anything, much less give them any orders, that is, if they talk to me at all,” Jackson said.

Fact Check: What Republican critics say about Jackson

GOP SEN. JOSH HAWLEY OF MISSOURI: “Judge Jackson has opined there may be a type of ‘less-serious child pornography offender.' ... ’A ‘less-serious’ child porn offender?” — tweet this past Wednesday.

THE FACTS: She opined no such thing. She asked questions about it.

Jackson was vice chair of the U.S. Sentencing Commission when it held a hearing on sentencing guidelines in 2012.

She told the hearing she was surprised at a Justice Department expert's testimony that, as she put it, some child-sex offenders may actually “not be pedophiles” but perhaps "loners" looking for like-minded company in child pornography circles. Being surprised by an assertion and wanting to know more are not the same as endorsing it.

“So I’m wondering whether you could say that there is a — that there could be a — less-serious child pornography offender who is engaging in the type of conduct in the group experience level?" she asked the expert witness. "They’re very sophisticated technologically, but they aren’t necessarily that interested in the child pornography piece of it?”

From those questions, Hawley extrapolated that Jackson had drawn conclusions, when she hadn't.

But several behavioral science researchers testified at that hearing that there may be nonsexual motivations among a portion of child-sex criminals. It is not a radical view. And many judges do see a distinction between those who produce child pornography and those who receive it.

In 2020, in denying compassionate release on medical grounds to a convicted sex offender serving almost six years in prison, Judge Jackson asserted: "The possession and distribution of child pornography is an extremely serious crime because it involves trading depictions of the actual sexual assault of children, and the abuse that these child victims endure will remain available on the internet forever.”

___

REPUBLICAN NATIONAL COMMITTEE: “Ketanji Brown Jackson’s record also includes defending terrorists.” — tweet from RNC Research on Feb. 25.

THE FACTS: That’s misleading on several fronts.

First, she did not defend convicted terrorists but rather suspects. The RNC ignored the presumption of innocence that is at the heart of the legal system. Second, defending people accused of a crime is exactly what defense lawyers are supposed to do. That’s why public defender’s offices exist – to represent suspects who cannot afford a lawyer or who have cases that lawyers for hire don’t want to take.

Jackson was working in the federal public defender’s office in the District of Columbia when she was assigned four Guantanamo Bay detainees, later continuing some of her work with them in private practice. This was after the Supreme Court ruled in 2004 that the detainees could file lawsuits challenging their indefinite detention.

Even those who were charged had those charges dropped, and all were eventually released. None was convicted by the military commissions created to try detainees.

Jackson was going by the textbook when she wrote that under “the ethics rules that apply to lawyers, an attorney has a duty to represent her clients zealously” regardless of the attorney’s personal views.

___

HAWLEY: “Judge Jackson went below the maximum, the minimum, and below what the government requested in every single case for which we can find records, except two. In those two the law required her to impose the sentence the government recommended.” — statement Friday.

THE FACTS: Not so. In most of the child pornography cases where she imposed lighter sentences than federal guidelines suggested, prosecutors or others representing the Justice Department generally argued for sentences that were lighter than those recommended by federal guidelines.

So it is not correct to assert that all but two sentences she handed down in such cases, when she served as a district court judge from 2013 until last year, were “below what the government requested.”

___

HAWLEY: “As far back as her time in law school, Judge Jackson has questioned making convicts register as sex offenders.” — tweet Wednesday.

THE FACTS: That's fair. She did question mandatory registry of sex offenders back in law school but did not come out explicitly against the practice.

Jackson wrote an unsigned statement for the Harvard Law Review in 1996 that suggested judges should be wary of mixing larger public safety concerns and punitive measures when sentencing sex offenders.

It said in part: “In the current climate of fear, hatred, and revenge associated with the release of convicted sex criminals, courts must be especially attentive to legislative enactments that ‘use public health and safety rhetoric to justify procedures that are, in essence, punishment and detention.‘”

___

This article has been updated to CORRECT that Jackson was a district judge when ruling on child pornography cases, not a circuit court judge.

___

Associated Press writers Hope Yen, Jessica Gresko, Mary Clare Jalonick and Chris Megerian contributed to this report.