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.