Washington D.C., Apr 3, 2022 / 04:00 am (CNA).
U.S. senators pressed Supreme Court nominee Ketanji Brown Jackson on multiple issues during her confirmation hearings. Those included issues of particular interest to Catholics: faith, abortion, sex and gender, child pornograhy, and even judicial philosophy.
Here is how Jackson — the federal judge nominated by President Joe Biden to replace retiring Justice Stephen G. Breyer — responded before the Senate Judiciary Committee ahead of its vote on April 4.
Faith: ‘Could you judge a Catholic?’
Sen. Lindsey Graham (R-SC) brought up Jackson’s faith during the confirmation hearings that ran March 21-24, asking at one point, “Could you fairly judge a Catholic?”
Jackson, who called herself a non-denominational Protestant, responded by saying “I have a record of fairly judging everyone.”
Graham then asked Jackson to rate her faith on a scale of 1 to 10 and wanted to know whether she attended church regularly. He referenced questions once asked of Justice Amy Coney Barrett about her Catholic faith, during her confirmation hearings as an appellate-court nominee in 2017.
“The conclusion one draws is that the dogma lives loudly within you,” Senator Dianne Feinstein (D-CA) told Barrett at the time. “And that’s of concern when you come to big issues that large numbers of people have fought for for years in this country.”
Barrett’s faith also came up multiple times during her confirmation hearings in 2020, as a nominee to the Supreme Court.
“How would you feel if a senator up here said [of] your faith, ‘The dogma lives loudly within you, and that’s of concern?’” Graham asked Jackson. “How would you feel if somebody up here, on our side, said, ‘You attend church too much for me or your faith is a little bit different to me,’ and they would suggest that it would affect your decision? Would you find that offensive?”
“I would,” he concluded, “if I were you.”
Graham continued to say that Jackson should be proud of her faith, and that he was confident that “whatever faith you have and how often you go to church, it will not affect your ability to be fair.”
Looking around the room, he added, “I just hope, going in the future, that we all can accept that.”
Abortion: ‘When does life begin?’
Both Democrats and Republicans pressed Jackson on abortion and the life issue, with questions including, “When does life begin, in your opinion?”
Jackson frequently responded with the same answer: “I do not know.” She did not know, she said, when life begins or when the law begins to protect a human person. She said she did not know if there was a right to abortion up until birth or if an unborn baby can feel pain at 20 weeks.
When Sen. John Cornyn (R-Texas) asked Jackson about viability — the point at which a baby can survive outside the womb — she opted to say, “I hesitate to speculate” and “I am not a biologist.”
Jackson also called Roe v. Wade — the 1973 Supreme Court decision that legalized abortion nationwide — “settled law” concerning “the right to terminate a woman’s pregnancy.”
Jackson’s response comes as the Supreme Court prepares to issue a ruling this year in Dobbs v. Jackson Women’s Health Organization, a case out of Mississippi that could potentially overturn Roe v. Wade and leave abortion up to the states. Jackson, if confirmed, would join the court after it has decided Dobbs. And, in future cases concerning abortion, Jackson most likely would not sway the direction of the court because she would replace Breyer, a liberal justice.
Still, pro-life leaders have expressed concern over Jackson’s record on abortion. In addition to having the support of abortion providers such as Planned Parenthood for her nomination, Jackson co-authored a 2001 amicus brief in McGuire v. Reilly in support of a Massachusetts “buffer zone” law that prevented pro-life sidewalk counselors from approaching women outside of abortion clinics, according to Susan B. Anthony List.
A coalition of pro-life leaders warned Senate leaders that, in this brief that Jackson wrote on behalf of abortion groups, she “portrayed pro-life sidewalk counselors as a ‘hostile, noisy crowd of ‘in-your-face protesters.’”
Jackson defended herself during the hearings, saying, “That was a statement in a brief, made an argument for my client, it’s not the way that I think of or characterize people.”
On the final day of Jackson’s hearings, 85-year-old Eleanor McCullen, a Catholic pro-life sidewalk counselor from Massachusetts, shared her perspective with senators.
“Her misrepresentations certainly don’t describe me or any of the sidewalk counselors that I have worked with over the years,” McCullen said of Jackson.
Sex: ‘What is a woman?’
At one point during the hearings, Sen. Marsha Blackburn (R-Tennessee) asked Jackson to define “woman.” Blackburn cited a case, United States v. Virginia, where the Supreme Court struck down a male-only admission policy at the Virginia Military Institute, and asked if she agreed with the late Justice Ruth Bader Ginsburg, who wrote the court’s opinion in that case.
“Do you agree with Justice Ginsburg, that there are physical differences between men and women that are enduring?” Blackburn asked.
When Jackson responded that she was not familiar with Ginsburg’s quote or the case, Blackburn followed up by asking, “Do you interpret Justice Ginsburg’s meaning of men and women as male and female?”
Jackson answered that she needed to read the case first, to interpret it. That is when Blackburn asked, “Can you provide a definition for the word ‘woman’?
“No, I can’t,” Jackson responded, before adding, “Not in this context, I’m not a biologist.”
Child pornography: A complicated case
Throughout the hearings, Republican senators repeatedly charged Jackson with being lenient in her sentencing of child porn offenders. The line of questioning began after Sen. Josh Hawley (R-Missouri) wrote a Twitter thread about Jackson’s sentencing record and concluded that Jackson “deviated from the federal sentencing guidelines in favor of child porn offenders.”
The chairman of the Judiciary Committee, Sen. Dick Durbin (D-Illinois), gave Jackson the first opportunity to respond. These cases, Durbin clarified, “do not involve the production of pornographic material,” meaning that they concern the consumers, rather than the creators, of child pornography.
In her response, Jackson pointed to Congress’ responsibility.
“Congress has decided what it is that a judge has to do in this and any other case when they sentence,” she said, adding that “the statute says calculate the guidelines but also look at various aspects of this offense and impose a sentence that is ‘sufficient but not greater than necessary to promote the purposes of punishment.’”
The U.S. Sentencing Commission, which establishes sentencing policies and practices for federal courts and advises Congress, wrote at least one report while Jackson served there on the operation of a guideline where more serious offenders were identified based on the volume, or number of photographs, in their possession, she said.
While that guideline once made sense, it no longer does because of the creation and expansion of the internet. As Jackson claimed, it is “not doing the work of differentiating who is a more serious offender in the way that it used to.”
Courts are adjusting sentences to account for this, she said.
In addition to prison, “These people are looking at 20, 30, 40 years of supervision,” Jackson said. “They can’t use their computers in a normal way for decades.”
Durbin highlighted news outlets that defended Jackson’s record and appeared to cite Andrew McCarthy, a former federal prosecutor, who called the senator’s claims “meritless to the point of demagoguery” in a piece at National Review.
“Judge Jackson’s views on this matter are not only mainstream; they are correct in my view,” McCarthy wrote. “Contrary to Hawley’s suggestion, however, she appears to have followed the guidelines, at the low end of the sentencing range, as most judges do.”
Pro-life leaders, such as Lila Rose of Live Action, responded by calling for “robust intervention by civil authorities” instead of “leniency.”
“The failure to properly sentence abusers of children is a systemic problem, and Judge Ketanji Brown is only one part of that problem,” she said on March 24.
Judicial philosophy: A 3-step methodology
The first question Jackson responded to — a question from Durbin, the chairman of the Judiciary Committee — concerned her judicial philosophy, or how she understands and interprets the law.
Jackson described the “methodology” that she follows, which consists of three steps.
“When I get a case, I ensure that I am proceeding from a position of neutrality,” she said, which involved clearing her mind of preconceived notions and setting aside personal views.
She identified the second step as “evaluating all of the facts from various perspectives” in each particular case.
The third step involved the “application and interpretation of the law to the facts in the case” while keeping in mind the restraints on her judicial authority. She named these constraints as her jurisdiction as a judge, precedent or prior decisions in similar cases, and adherence to text, whether from a statute or a constitutional provision.
“I’m trying to figure out what those words mean as they were intended by the people who wrote them,” she said, before adding, “Judges also look at history and practice at the time the document was created.”
Several senators expressed concern about Jackson’s philosophy, including Sen. Ben Sasse (R-Nebraska), who said he could not vote for her confirmation.
“Judge Jackson has impeccable credentials and a deep knowledge of the law, but at every turn this week she not only refused to claim originalism as her judicial philosophy, she refused to claim any judicial philosophy at all,” he said in a press release on March 25.
What happens next?
The Senate Judiciary Committee, which consists of 22 members, is expected to vote on Jackson’s nomination on Monday, April 4. All 11 Democrats will likely back Jackson. If all 11 Republicans vote against her, Jackson’s nomination can still move forward despite the tie — but Democrats will have to take extra procedural steps.
After the committee’s vote, the full Senate will consider Jackson’s nomination. Democrats hope to schedule a full Senate vote before the Senate adjourns for Easter recess on April 8.
To sit on the Supreme Court bench, Jackson needs 51 votes in the Senate, which is evenly divided between 50 Democrats and 50 Republicans. If there is a tie, Vice President Kamala Harris would serve as the tie-breaker. That situation is unlikely because Jackson has the backing of at least one Republican senator: Susan Collins of Maine.
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