While Democrat President Joe Biden jets off to Europe, his nominee for the Supreme Court, Judge Ketanji Brown Jackson, is fending off questions during her confirmation hearings.
Most expect Jackson to be confirmed as Democrats have enough votes without support from Senate Republicans.
However, Jackson needs the full support of the Democrats but cracks are beginning to emerge.
According to Punchbowl News, at least two Democratic Senators are not happy with her performance yesterday saying she was “unprepared.”
“Yet two Democratic senators on the panel privately raised concerns with us as to whether Jackson had been adequately prepared for the GOP cross-examination on her sentencing of child pornographers,” the outlet reports.
“Sen. Josh Hawley (R-Mo.) had signaled days in advance that he was going to push this explosive line of questioning, and Jackson still seemed not fully ready for the GOP onslaught on Tuesday.
“All Democrats agreed she was far better on Wednesday, although ‘The damage had already been done,’ a Democratic senator admitted.”
Dick Durbin, the Chair of the Senate Judiciary Committee issued a press release to try to clean up the mess, saying:
“U.S. Senate Majority Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, today questioned Judge Ketanji Brown Jackson, at the second day of the Senate Judiciary Committee’s hearing on her nomination to be an Associate Justice of the Supreme Court.
“Durbin asked Judge Jackson about the false claims made by Senator Josh Hawley (R-MO), stating Judge Jackson ‘has a pattern of letting child pornography offenders off the hook for their appalling crimes.’
“But in each case, Hawley cited, the offender went to prison, and in at least five of the seven cases, Jackson imposed a sentence at or above Probation’s recommendation.
“Various news outlets have debunked this offensive claim.”
The statement from Durbin’s office continues by arguing against the claims made by Hawley:
Durbin said, “I thought of these charges as I watched you and your family listening closely yesterday. It made me wonder how you felt as your friends and family heard those charges that your sentencing endanger[s] children. Could you tell us what was going through your mind at that point?”
Judge Jackson responded, “As a mother and a judge who has had to deal with these cases, I was thinking that nothing could be further from the truth. These are some of the most difficult cases that a judge has to deal with because we are talking about pictures of sex abuse of children.
We are talking about graphic descriptions that judges have to read and consider when they decide how to sentence in these cases, and there is a statute that tells judges what they are supposed to do…
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.’ When I am dealing with something like this, it is important to me to make sure that the children’s perspective is represented in my sentencing…
I impose a strict sentence and all of the additional restraints that are available in the law…
I am imposing all of those constraints, because I understand how significant, how damaging, how horrible this crime is.”
Hawley claimed that Jackson had “a disturbing record” on child pornography. But Jackson’s sentences are in the judicial mainstream. As the Sentencing Commission concluded in its 2012 and 2021 reports, judges across the country consistently impose below-guidelines sentences in non-production cases due to a view that technological changes have rendered the guidelines outdated.
For example, between 2015-2020: judges in the district of D.C., where Jackson served, imposed below-guidelines sentences in these cases 80% of the time; judges in Missouri district courts did so 77% of the time; and nationally, in 2019, only 30% of non-production child pornography offenders received a sentence within the guideline range.
Judge Jackson concluded, “Congress is tasked with the responsibility of setting penalties – [a] responsibility of setting penalties. Congress tells judges what to do when we sentence. Congress has to determine how it wishes for judges to handle these cases, but as it currently stands, the way the law’s written, the law is not consistent with the way these crimes are committed.”
A judge who Senator Hawley recommended for the Eastern District of Missouri, Sarah Pitlyk, in 2019 sentenced a person convicted of possessing child pornography to 60 months, well below the 135-168-month sentence recommended by the guidelines.
Hawley falsely claims that Judge Jackson “advocated for drastic change” in child pornography sentencing on the Sentencing Commission. But Hawley is referencing a bipartisan report that was issued on a unanimous basis by the Commission, including Republican appointee Dabney Friedrich, who was later nominated by Donald Trump and supported by every Senate Republican to be a district court judge.
Hawley also deliberately took remarks Judge Jackson made on the Sentencing Commission out of context, claiming that questions Judge Jackson asked about witnesses’ testimony were statements of her own opinions.