The NPR Politics Podcast - Ketanji Brown Jackson Begins Historic Supreme Court Confirmation Hearings

Episode Date: March 21, 2022

On her first day of Supreme Court confirmation hearings, Judge Ketanji Brown Jackson told senators that she "stands on the shoulders" of those who came before her and that she decides cases "from a neutral posture." While she has broad support from Democratic senators, Republicans are likely to press her on her record as a public defender when questioning begins Tuesday.This episode: Congressional correspondent Susan Davis, justice correspondent Carrie Johnson, and legal affairs correspondent Nina Totenberg. Connect:Email the show at [e-mail] the NPR Politics Podcast Facebook Group.Subscribe to the NPR Politics Newsletter.Find and support your local public radio station.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Hi, my name is Evan. I'm Sydney. And I'm Rue. And we're here at the Hanakapie Falls in Hawaii. This podcast was recorded at 4.54 p.m. on Monday, March 21st. Things may have changed by the time you hear this. But hopefully, we'll be enjoying shaved ice and a nap in the sun. All right, here's the show. Oh, doesn't that sound lovely to be in Hawaii right now? The good life. Wow. Hey there, it's the NPR Politics Podcast. I'm Susan Davis. I cover Congress.

I'm Carrie Johnson, National Justice Correspondent. And I'm Nina Totenberg. I cover the Supreme Court. And today was the first of four days of confirmation hearings for President Biden's Supreme Court nominee, Katonji Brown Jackson. Judge Jackson would be the first black woman to serve on the court if confirmed, something committee chairman Dick Durbin emphasized as he opened today's hearing. You, Judge Jackson, can be the first. It's not easy being the first. Often you have to be the best, in some ways the bravest. In her opening statement to the committee, Judge Jackson also highlighted the historic nature of her nomination. I stand on the shoulders of so many who have come before me,

including Judge Constance Baker Motley, who was the first African-American woman to be appointed to the federal bench and with whom I share a birthday. And like Judge Motley, I have dedicated my career to ensuring that the words engraved on the front of the Supreme Court building, equal justice under law are a reality and not just an ideal. For a lot of people, this was the first chance to hear directly from Jackson about her life and her experience and how she views the law. What stood out to both of you in these opening remarks today? Well, I would say that one of the most interesting things about today's hearing, which was fairly formalistic

after all, there were no actual questions and answers, was what was going on in the rest of the room. So Judge Jackson had not only her husband and children, but her parents here, her husband's parents, siblings, and at various times, all of them were fighting back tears. Even the nominee, when she was being introduced by her college and law school roommate, Lisa Fairfax, and you could see Jackson's nose redden, and she reached for something to keep the tears in check in her eyes. So even the nominee, when somebody else was talking about her in a nice way, teared up. Then, too, there was her husband's foot,

which almost never stopped moving. That's where all the tension was. One of the things that really jumped out at me was even though she didn't have that much to say today, it's very difficult to sit still for six or seven hours and not display any discomfort, even when people are saying things about you that aren't always so positive. And her kind of unwavering facial expression and her very big smile, I think, go a long way in explaining

how collegial she is. She did seem to be in some ways preempting the questions I assume she anticipates, especially from Republican senators over the next two days about her judicial philosophy, such as it is. And she kept coming back to these themes of impartiality. I decide cases from a neutral posture. I evaluate the facts and I interpret and apply the law to the facts of the case before me without fear or favor consistent with my judicial oath. And I carry I also liked how she made mention of the fact that she writes really long decisions that she has a reputation for being sort of wordy when it comes to how she makes these decisions.

And you may have also noticed that my opinions tend to be on the long side. That is because I also believe in transparency, that people should know precisely what I think and the basis for my decision. The theme of transparency is one that really extends throughout her career. I feel it's really resonant with something she said based on her experience defending poor people in court and on appeal, which is that she came across so many people who didn't understand the way the process worked. And ever since then, when she was a district court judge and then when she was elevated to the appeals court, she wanted to make clear to real people moving through the system in some way or other, civil court, criminal court, the way this process

works, what matters, and the idea that she's going to be taking the facts before her and applying the law and doing it in a way that comes out in an impartial, neutral way. And that's really a theme of her life in the law, I think. Nina, Democrats are obviously very excited about this nomination. They were effusive in their praise of her today. But she is going to face some tough questions from Republicans over the next two days about her record, particularly on crime and on her impartiality. They previewed some of those lines of questioning today. Senator John Cornyn, for example, said he was troubled by some of her defenses of terrorism suspects. As someone who has deep respect for the adversarial system of justice, I understand the importance of zealous advocacy.

But it appears that sometimes this zealous advocacy has gone beyond the pale. One Republican senator, Josh Hawley of Missouri, really focused on this soft on crime line, specifically about sentences Judge Jackson handed down in cases involving child pornography. What is the issue here? Last week, Senator Josh Hawley went on the offensive and sent out a series of tweets that pointed to cases in which he said that she had sentenced child pornographers to sentences that were way below what they should have been, what the government asked for, and what the probation office asked for. That has been hotly disputed, not just by members of this administration, but even by some conservative prosecutors. Nonetheless, he made clear today that he intends to ask her about specific cases. And she knows which ones they are, so presumably she's prepped. What concerns me, and I've been very candid about this, is that in every case, in each of these seven,

Judge Jackson handed down a lenient sentence that was below what the federal guidelines recommended and below what prosecutors requested. And so I think there's a lot to talk about there, and I look forward to talking about it. You know, there has been a review of sentences that judges have handed down for child pornography distribution. This is not people who create the child porn, but rather people who possess it or distribute it. And in about 70% of cases, judges like Judge Jackson tend to give sentences below what's called the guideline range. So if you do an analysis of her record on some of these cases, lawyers have pointed out that she's well within the mainstream. Carrie, one of the things you've reported on in this nomination process is how much support Jackson has sort of from the ideological span of the legal profession. And I would note today that one of the character witnesses that spoke in her favor today was a former judge who was appointed by a Republican president. So I wonder how easy it would be to land an attack

on a nominee like this, that she is somehow more radical than anything in her record has led on. Yeah, I don't think that's an easy attack, not just because retired Judge Thomas Griffith, who was appointed by President George W. Bush and who said he didn't always agree with Judge Jackson, but he found her to be a model lawyer and a model of collegiality. And he heartily endorsed her nomination. So have other very conservative judges like retired Judge Mike Ludig and a number of other conservatives. And so with respect to this soft on crime argument, it's complicated in part because Ketanji Jackson's brother was a police officer in Baltimore. Her uncle was the police chief in Miami, and she's received endorsements from several major police unions, including the International Association of Chiefs of Police and the biggest

union in the country, the Fraternal Order of Police, says it's looking forward to working with her, even though it doesn't always agree with her. Remember, the FOP was very big in endorsing former President Donald Trump. So trying to paint her with this brush that she's too left or too soft on crime, I don't think that argument is going to go very far when you get into the record of this person. All right, let's take a quick break. And we'll talk more about the confirmation process when we get back. And we're back. And another thing that stood out to me in these opening statements today is just how much bitterness lingers among Republican senators over the nomination process of Brett Kavanaugh. Specifically,

we heard it today from senators like Lindsey Graham of South Carolina, who was the chairman at the time. Most of us couldn't go back to our offices during Kavanaugh without getting spit on. Hope that doesn't happen to y'all. I don't think it will. You know, I was thinking about this a lot today as I was watching the hearing is just how bitter these confirmation processes have become in recent years. Kavanaugh obviously had a lot of specific issues as to why that was. But Supreme Court justices are just, you know, tend to be party line votes these days. And I wonder if you think that that's just how it's going to be from now on. Doug Jones, who's the former Alabama senator who's sort of leading her through the process after the hearing today, said in another time and place, this is the kind of nominee that would probably get near unanimous support in the Senate.

But we don't live in those times anymore. Well, he's probably right. We don't live in those times anymore. And there are groups on the right and left who not only make a living doing this, they raise money off of fanning the flames in confirmation hearings. That said, there was, I think, on the committee today, on the Republican and Democratic sides, some notion that they wanted to lower the temperature. Now, that may be because she's probably going to be confirmed. And what have the Republicans got to lose if they don't make life miserable for her?

After all, the optics of beating up on a black woman are not great politics. And and and it's there is a six to three majority supermajority for the conservatives on the court, even assuming she is confirmed to replace Justice Breyer. You know, I heard a number of these Republican senators talking very bitterly about Brett Kavanaugh and other nominees, people like Miguel Estrada, who was nominated to the top federal appeals court here in D.C. and never got through because there was a big blockade on his nomination. But what I did not hear was two words. And those words are Merrick Garland, President Obama's nominee, who, after all, never even got a meeting with any Republican senators. So there is a history here on both sides. It can be a very bitter history. That was about as bad as it gets. And we're not in that moment now, which I think

is probably a good thing for the court and the Senate in the country. Well, I mean, even if no Republicans get on board with this nomination, she's still pretty certain to be confirmed. Democrats have a 50-50 Senate. They have Vice President Kamala Harris, who can break a tie. So the outcome doesn't seem necessarily in doubt as we sit here right now. But I wonder, knowing that, how are you two watching the next two days of hearings in this Q&A portion? What are you listening for? And what are you curious about to hear from her? Well, she certainly knows what's coming her way. And the trick for her, I think, is to seem at once responsive without getting herself in trouble.

So what we've seen in recent years from both Democratic and Republican Supreme Court nominees is that they are very well-schooled in saying nothing. Asking them questions is like asking questions of a wall. The ones who have actually gotten some traction from their opponents, as it were, are the ones who have some genuine charm. And obviously, the Chief Justice, John Roberts, is considered the gold standard for a Supreme Court nomination, the best that almost anybody has ever seen. Elena Kagan was no slouch, though. Yeah, well, I was about to say, it takes a certain element of fancy footwork to be likable, not just there and not getting into trouble, but genuinely likable.

So the next two days could be pretty contentious. I'm sure there's going to be some partisan moments. But I'd like to end on a sort of nicer note, because it was a historic day. And it was fascinating to see a black woman sitting in a seat that no other black woman has sat in before. And Cory Booker is a Democratic senator from New Jersey. And he spoke to that. And specifically, he referenced that one of her two younger daughters, when President Obama was in the White House, wrote the president a letter telling him that they believed that their mom should have this job. Well, I want to tell your daughter right now that that dream of hers is so close to being a reality, some tough days ahead, but I think it could happen. So let's leave it there for today. We'll be back in your feeds tomorrow,

a little bit later than usual, to wrap up the second day of the hearings. I'm Susan Davis. I cover Congress. I'm Carrie Johnson, National Justice Correspondent. And I'm Nina Totenberg. I cover the Supreme Court. And thank you for listening to the NPR Politics Podcast.