- The Washington Times - Tuesday, March 22, 2022

Judge Ketanji Brown Jackson vehemently rejected accusations of leniency toward child pornography offenders, telling senators Tuesday that she was following Congress’ instructions when she habitually delivered sentences well below what guidelines suggested.

Confronted with one case in which she issued a three-month sentence to an 18-year-old man who had a large cache of videos and images depicting children as young as 8, she called it “unusual.” Sentencing guidelines called for about 10 years in prison and prosecutors asked for two years.

Judge Jackson told senators that the crime was “heinous,” but said she had discretion and she used it as she thought right, taking into account the man’s younger age and other factors.

“It’s not just about how much time a person spends in prison. It’s about understanding the harm of his behavior, it’s about all of the other kinds of restraints that sex offenders are ordered, rightly, to live under,” she said.

Facing senators for a full day of questions, Judge Jackson also swatted away accusations that she is an adherent of critical race theory and denied having called President George W. Bush a “war criminal” over treatment of people during the war on terror.

She also denied any connection to liberal dark-money groups supporting her nomination and calling for packing the court.

Judge Jackson revealed her judicial philosophy, tying herself most closely to the “original public meaning,” or originalist, school of thought usually associated with more conservative judges.

“I’m not importing my personal views or policy preferences. The entire exercise is about trying to understand what those who created this policy or this law intended,” Judge Jackson told the Senate Judiciary Committee.

In a follow-up, she rejected labels but also rejected the idea of the Constitution as a “living” document.

“I do not believe that there is a living Constitution in the sense that it’s changing and it’s infused with my own policy perspective or the policy perspective of the day,” the judge said. “Instead, the Supreme Court has made clear when you’re interpreting the Constitution you’re looking at the text at the time of the founding, and what the meaning was.”

She rebutted attempts to attach labels to her philosophy and would not suggest any current or former justices whose philosophy she shared.

Instead, she urged senators who will vote on her nomination to look at her eight years as a U.S. district judge and her months as an appeals court judge.

SEE ALSO: GOP: Democrats hiding Ketanji Brown Jackson’s records on weak child-porn sentencing

Republican senators were wary of her assurances.

“She’s saying the right things, but these tend to be very heavily coached, which doesn’t really help a lot,” said Sen. John Cornyn, Texas Republican.

Sen. Christopher A. Coons, Delaware Democrat, pushed back on the notion that a judge needs to disclose a judicial philosophy — or even have one at all.

“I’d say your record as a judge is the best answer,” Mr. Coons said.

That record, particularly on child pornography cases, dominated much of Tuesday’s questions.

Sen. Josh Hawley, Missouri Republican, said she faced seven cases involving possession of child pornography in which she had discretion in sentencing, and in each of them she imposed a sentence less than both the nonbinding sentencing guidelines and what prosecutors sought.

He also pointed to her comments to the 18-year-old she sentenced to three months, where she apologized to him for the difficulties the conviction would put him through, and suggested he was looking at images of his “peers.”

“You say he’s not a pedophile. You say that you are very sorry for him and what he’s suffered, then you give him three months when, frankly, a liberal prosecutor is asking for two full years,” Mr. Hawley said. “It bothers me when in each and every child pornography case you’ve had, you’ve sentenced below the guidelines and below the government’s recommendation.”

Judge Jackson said her decisions were not out of line with those of other judges in child pornography cases.

She said as the judge, she sees the actual images and knows the horror of what is involved, and said she takes pains in each child pornography case to lecture defendants on the true harms. She recounted one victim who wrote to her describing how the violation she experienced was so severe that she developed agoraphobia and could not leave her home.

“For every defendant that comes before me and suggests — as they often do — that they are just a looker … they’ve collected these things on the internet and it’s fine,” she said. “I say to them, ‘There is only a market for this kind of material because there are lookers. That you are attributing to child sex abuse.’”

Sen. Richard J. Durbin, Illinois Democrat and the Judiciary Committee chairman, said questions about the judge’s record of child pornography offenses were unfair.

He said blame for low sentences for child pornography possession lies chiefly with Congress, which he said could revisit the issue and boost penalties.

Republicans prodded Judge Jackson on critical race theory, an idea that racism pervades the law and must be met with “anti-racism.” Conservatives argue that critical race theory is bleeding into school curricula and teaching that America is intractably racist.

Judge Jackson said critical race theory hasn’t touched her job as a judge.

“It never comes up in my work as a judge. It is not something I studied or relied on, and it wouldn’t be something I relied on if I were on the Supreme Court,” she said.

Sen. Ted Cruz, Texas Republican, challenged Judge Jackson about a 2015 speech she gave at the University of Chicago where she said, “Sentencing is just plain interesting because it melds together various types of law: criminal law and, of course, constitutional law, critical race theory.”

“You described in a speech to a law school as what you were doing as critical race theory,” Mr. Cruz told the nominee.

Judge Jackson said she was talking about sentencing policy — not sentences handed down.

Republicans also quizzed the nominee on whether she is connected to liberal dark-money groups that backed her nomination to the high court. She denied that these groups have “bought” justices on the Supreme Court.

“I don’t have any reason to believe that is the case,” she said, adding that she holds all members of the Supreme Court in high esteem.

Lawmakers on both sides of the aisle have attempted to link judicial nominees to conservative or liberal advocacy groups supporting the nominee’s appointment on the bench.

Most recently the liberal group Demand Justice has come under scrutiny from Republicans for its support of Judge Jackson. The group has called for President Biden to pack the court with liberal justices to counter the 6-3 conservative majority.

“My North Star is the consideration of the proper role of a judge in our constitutional scheme, and in my view, judges should not be speaking into political issues and certainly not a nominee for a position on the Supreme Court,” Judge Jackson told the Senate Judiciary Committee.  

Mr. Cornyn questioned the nominee about her representation of Guantanamo Bay detainees when she worked as a defense attorney, saying she called Mr. Bush and former Defense Secretary Donald H. Rumsfeld a “war criminal.”

Mr. Durbin came to her defense, noting that she was representing individuals against the government and claiming its torture of them constituted war crimes. He said the judge called neither the former president nor his Pentagon chief a “war criminal.”

Democrats used their questions to defend the judge or to celebrate the historic nature of her nomination. She is the first Black woman nominated. If she is confirmed, four of the nine justices will be women.

“One of the things of having diverse members of the court does is it provides for the opportunity for role models,” Judge Jackson said. “Since I was nominated to this position, I have received so many notes and letters and photos from little girls around the country who tell me they are so excited for this opportunity and they have thought about the law in new ways because I am a woman because I am a Black woman — all of those things.”

Judge Jackson will return for a second day of questions on Wednesday.

Democrats hope to hold a vote on her nomination in committee in two weeks.

• Mica Soellner contributed to this report.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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