On Tuesday, the Senate Judiciary Committee continued to question Supreme Court nominee Ketanji Jackson. The hearing was, as they often go, primarily focused on the kind of political theatre that’s more likely generate clip for cable news than it is to extract useful tidbits regarding Jackson’s approach toward the bench.
A series of exchanges brought that up to new levels. The nominee spent considerable time explaining for the committee what it takes to be an attorney and how trial practice plays out in real life.
Early on there was her exchange with Sen. Lindsey Graham (R–S.C.Her exchange with Senator Lindsey (R-S.C.) was quite early. Graham responded to the nominee’s assertion that her brief did not necessarily reflect her views. Graham then asked why he would do so if it wasn’t your position.
Jackson stated, “I would refer to you the same kinds of statements Chief Justice Roberts made before the committee.” He also said that Jackson believed that clients are represented by lawyers.
Graham is an Air Force lawyer who likely knew this. It gave Graham an opportunity to make a monologue, interrupted by his storming from his chair in front of the camera.
When Sen. Ted Cruz (R–Texas) took his turn, he pivoted back to allegations—originally raised by Sen. Josh Hawley (R–Mo.)—that Jackson is soft on child predators. Cruz presented a chart illustrating a number of cases where Jackson sent defendants to lower sentences than what the government wanted.
The only thing that was missing from his presentation was the one in vast majority of non-production cases—meaning a defendant was not charged with creating pornographic content but instead with viewing or possessing it—federal judges nominated by both Republican and Democratic administrations do exactly what Jackson did: sentence such offenders below the federal sentencing guidelines. This is because there is a wide, bipartisan consensus among judges that those guidelines (which are non-binding) are overly punitive and do not appropriately distinguish between various types of offenses—something Jackson reiterated over and over. They are not free to walk away from these defendants. Jackson countered that they shouldn’t. She instead supported the dominant judicial view of nuance. It is easier to use in an era when performance exceeds substance.
Cruz missed the important fact that judges don’t have to agree to a sentence simply because they are required by a prosecutor. This is often a problem. It’s not an ideological concept. Cruz is an attorney and is probably familiar with the concept. It’s all he wants you to forget.