The NPR Politics Podcast - Ketanji Brown Jackson Vows To Be An "Impartial" Supreme Court Justice

Episode Date: March 23, 2022

Ketanji Brown Jackson, President Biden's Supreme Court pick, faced questions from the Senate Judiciary Committee Tuesday. In a marathon hearing, Jackson said she decides cases "from a position of neutrality" and follows the text of the Constitution. Republican senators questioned her record sentencing criminal defendants and representing detainees and Guantanamo Bay.This episode: Congressional correspondent Susan Davis, congressional correspondent Kelsey Snell, and senior political editor and correspondent Domenico Montanaro.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

This is Melanie in Charlotte. The furry children and I are enjoying spring out on the new screened-in porch, also known as an expensive catio. This podcast was recorded on? 5.57 p.m. on Tuesday, March 22nd. Things may have changed by the time you hear this, but I will still be trying to herd the cats back into the house. Enjoy the show. I love that. Sounds like someone who just had work done. Still feeling it. Hey there, it's the NPR Politics Podcast. I'm Susan Davis. I cover Congress. I'm Kelsey Snell. I also cover Congress.

And I'm Domenico Montanaro, senior political editor and correspondent. And today is the second day of Judge Katonji Brown-Jackson's Supreme Court confirmation hearing, but it was the first of two days in which she's fielding questions from senators. Now, as we tape the podcast, the hearing is still going on. We're about nine hours into it, but we've got a pretty good sense of the issues that senators are choosing to highlight and why. Iowa Senator Chuck Grassley, he's the top Republican on the panel. He focused a lot on her judicial philosophy. Here's how Judge Jackson laid out how she views the law. I am doing the work and have done the

work for the past 10 years that judges do to rule impartially and to stay within the boundaries of our proper judicial role. And in one exchange, Judge Jackson's answer about how she interprets the Constitution sounded more like a conservative justice like the late Antonin Scalia. Instead, the Supreme Court has made clear that when you're interpreting the Constitution, you're looking at the text at the time of the founding and what the meaning was then as a constraint on my own authority. Domenico, did that surprise you? This is part of the say-nothing playbook, you know, but normally you don't hear somebody who's being put up to the bench by a Democratic president say some of the things that she said, repeatedly talking, frankly, about reading the text and the intent of what the framers wanted and the people who wrote those laws, including Congress.

It's an interesting strategy, certainly. But it's, again, the same sort of playbook we've seen over the last 20 years or so with these nominees. You don't want to offend the other side. Don't give too much information out. What that winds up doing, frankly, for us, for those of us who watch hours and hours, days upon days of this, come away a little bit frustrated, not really feeling like we know where Judge Jackson stands on a lot of different things.

I mean, think about cameras in the courtroom, court packing, all of these things she said, essentially, she punted on them and said, you know, this is not something for me to decide on. And I'll talk to my other colleagues if and when I make it to the Supreme Court. I will say, though, that one of the things that was interesting about all of this is it kind of speaks to why we keep hearing Republicans say that she is a well-qualified judge that they all respect. I mean, there are elements of her record that they generally agree, you know, are things that they support. For the most part, Republicans say that she is well-qualified. They will probably not vote for her because they politically are not going to go down that route. But this is a fairly consensus pick. And Democrats feel pretty

comfortable about the fact that they can recruit some Republicans to vote for her based on that reality. And these are a big test, you know, these days standing in front of the camera, practicing that, you know, sort of neutral face to be able to, you know, talk to these senators over and over again. And, you know, even Republicans, like able to, you know, talk to these senators over and over again. And, you know, even Republicans, like you said, you know, praised her for her charm and her personal life. But there were a lot of grievances that Republicans were airing that literally had nothing to do with her, but had everything to do with their colleagues on the other side of the aisle. Yeah, I mean, there was some themes that clearly developed throughout the day, and one of them was the focus on her record on crime, specifically on the sentences she's handed

down in a handful of cases that involved child pornography. This gets a bit complicated, but Senator Josh Hawley, a Republican in Missouri in particular, has taken issue with sentences in which he suggested that she was too lenient towards those who possessed child pornography. Guidelines called for 10 years. Prosecutor wanted at least two. You gave him three months. And when you did, you made a number of arguments and statements in the record, and I'd like to go through some of them because I've read them all. And the first argument you made was that the federal guidelines that punished child porn offenders, the ones that Congress wrote, were, and I'm quoting you now, are in many ways outdated. That's your quote. And you went on to say about why you thought- You know, Judge Jackson responded to this question of her past rulings repeatedly throughout the day,

and she responded again to Senator Hawley. And it is heinous. It is egregious. What a judge has to do is determine how to sentence defendants proportionately consistent with the elements that the statutes include, with the requirements that Congress has set forward. Domenico, how exactly did she explain those decisions? Yeah, you know, she talked a lot about how, you know, there's been a lot of change through the years when it comes to sentencing, sentencing guidelines, you know, there's been a lot of change through the years when it comes to sentencing, sentencing guidelines, you know, the probationary, you know, groups that go in and look and make recommendations. But essentially, judges have this discretion to make these sentences. And remember,

we should remember that we're talking about prison sentences. And what she wanted to really emphasize was that not only did she, you know, assign people to prison with sentences that may have been less than what prosecutors had asked for, but that there are other restrictions that are still put in place on a lot of these sex offenders or people who were holding child pornography, you know, like not being allowed to use computers for decades or being near schools for decades. So, you know, she took a really nuanced, empathetic view. And clearly, this was an avenue that Republicans felt like they could push down because obviously, Republicans feel like there should have been stricter penalties should have been more jail time for a lot of these folks. I mean, we should note that these allegations have been

written extensively by fact checkers. Even conservative legal scholars have written in National Review in particular saying these attacks borderline on demagoguery. But Kelsey, like this is a choice, right? Like Republicans are making a choice, a political choice to focus on this line of questioning against her. And to me, it just raises the question, what is Josh Hawley and other Republicans trying to accomplish with that line of questioning? in this hearing, they promised that this was going to be a hearing about substance and that it was going to be respectful. And they were essentially promising a boring hearing here, but they can't control what all of their members do. And in this case, Josh Hawley and, you know, also Ted Cruz, who is on the committee and spoke about this as well, are people who have higher ambitions beyond the Senate. Both of them are rumored to be thinking about running for president, and they are speaking not necessarily to Judge Jackson or even the Democrats in the room, but to their base. And I think it's very interesting the way the White House has responded.

One of the White House press secretaries, Andrew Bates, tweeted out calling it embarrassing and said it was a QAnon signaling smear to be discussing it and then linked to several fact checks, including the conservative fact check from NRO that you mentioned. I think that's very telling of the way Democrats and even some more mainstream Republicans are viewing this. Another one of the more contentious moments in the hearing happened earlier in the day when she was asked about her defense of detainees at Guantanamo Bay following the terrorist attacks on September 11th. Lindsey Graham, he's a Republican from South Carolina. He kind of got fired up about this. Advocates to change this system like she was

advocating would destroy our ability to protect this country. We're at war. We're not fighting a crime. This is not some passage of time event. As long as they're dangerous, I hope they all die in jail if they're going to go back and kill Americans. It won't bother me one bit if 39 of them die in prison. That's a better outcome than letting them go. Domenico, this was one of those moments where you're like, is this really about her?

You know, it seemed like, and you mentioned this earlier, in some of these questioning, there just seemed to be anger about the left in general, not about this nominee specifically. Totally. And, you know, to just give context on why this topic even was brought up in the first place is because she represented some inmates at Guantanamo Bay, even though she never traveled there, in an appellate situation where she was a federal public defender, and she's assigned a case. And, you know, aside from Graham, you had other Republicans who tried to narrow in on some of the briefs that she

filed in talking about, you know, the system of laws in the country, how things needed to go, etc. And, you know, they tried to kind of look at that. And she said, Look, this, I'm representing my clients here. And I think another bigger piece of context with this is for a lot of the people who were representing people at Guantanamo, this was a brand new, you know, time. This was not only hotly polarizing and a time when the country was at war and had just been attacked, but how the country dealt with, you know, these detainees, what types of, you know, systems were put in place were new. And, you know, a lot of those people representing them really were pushing the limits to see what the court would then make clear for what the boundaries would be.

All right, let's take a quick break and more on the hearing when we get back. And we're back. And another exchange in today's confirmation hearing that got some attention was between Senator Ted Cruz, Republican from Texas, over the issue of Judge Jackson's role on the board at Georgetown Day School. Georgetown Day School is a private pre-K through 12 school in Washington, D.C. I think it's fair to say that it's a rather elite education institution, and Cruz alleged that the curriculum there was, quote, overflowing with critical race theory. Now, this is a book that is taught at Georgetown Day School to students in pre-K through second grade, so four through seven years old. Do you agree with this book that is being taught with kids that babies are racist? Senator, I do not believe that any child should be

made to feel as though they are racist or though they are not valued or though they are less than, that they're victims, that they're oppressors. I don't believe in any of that. I would also note that the RNC, the Republican National Committee, during the hearing tweeted out an image of her that said KBJ next to it with obviously her initials, and then it's crossed out and writes CRT over it for critical race theory. It's really something else. I mean, Domenico, this is tricky here, right? I mean, this is this sort of fine line that Republicans need to walk here, where if you push this too far, I think it makes Republicans look like the unreasonable ones and the Republicans raising a race issue that may not have the intended consequence that they're seeking.

Well, Judge Jackson pointed out in this conversation that she is on the board, she doesn't control the curriculum, and she doesn't know what's being taught to these kids. So above and beyond her thoughts about it, she has no control over what's being taught in this school. And so she repeatedly tried to make it very clear that she thought Cruz's questions were not appropriate, and that they were directed at the wrong person. This definitely was the part of the hearing that felt the most like GOP midterm messaging, right? And, you know, the fact that the RNC picked up on that right away and pushed that out, they wanted to be able to, you know, say this is what a Democratic judge and Democratic court would look like, people who would allow this kind of thing in society, which was all, frankly,

overblown and a little bit off of what the Republicans had said that they wanted to be focused on, which was not the personal and associations, but on keeping it based on what her decisions have been. This is one place where that did not, that was not what happened. In fact, at one point, she said, this critical race theory has nothing to do with how I would be a judge. All right, we need to get back and finish watching the first day of questionings. But Kelsey, where do we go from here? We've got another day of questioning, and then she seems like she's still on a glide path in the Senate. Yeah. Up next is some more questions from senators. We'll probably have another round of questions from senators tomorrow, but a shorter round.

And then on Thursday, it will just be statements from people about her character and her background, which is usually the easiest day of the hearings as these things go. And then there will be about a week when the committee deliberates before they meet up again for a public session to vote on her nomination. The goal, Democrats say, is to have a vote on the Senate floor before Easter, and it looks very much like they're heading in that direction. Do you think that's like a specific kind of judge senioritis when you've been confirmed to the Supreme Court, but you don't actually take the seat until the summertime when Breyer retires? Like her May and June is going to be like super chill. And the grades don't count, unlike my senior year in high school. All right, we're going to leave it there for today. We will be back in your feeds tomorrow, wrapping up the second day of questioning. I'm Susan Davis. I cover Congress.

I'm Kelsey Snell. I also cover Congress. And I'm Domenico Montanaro, senior political editor and correspondent. And thanks for listening to the NPR Politics Podcast.