(WASHINGTON) — The nation’s first Black woman nominated to the U.S. Supreme Court, Judge Ketanji Brown Jackson, cleared 19-hours of grueling questioning at the Senate Judiciary Committee on Wednesday, appearing headed toward confirmation as a justice with support from all Democrats and a small number of Republicans.
“In my capacity as a justice, I would do what I’ve done for the past decade,” Jackson told the committee on her third day of testimony, “which is to rule from a position of neutrality, to look carefully at the facts and… to render rulings that I believe and that I hope that people would have confidence in.”
The three days of hearings reached an emotional climax during a dramatic soliloquy by Sen. Cory Booker who, reflecting on the historic nature of the moment, moved Jackson to tears.
“You did not get there because of some left wing agenda. You didn’t get here because of some dark money groups. You got here how every Black woman in America who has gotten anywhere has done,” Booker said. “You are worthy. You are a great American.”
Here are several key takeaways from testimony on Wednesday:
Judge Jackson fights back
Cool and restrained under fire on Tuesday, Judge Jackson’s performance Wednesday was noticeably more confident, emotive and dynamic in responding to Republican criticism of her record.
“I have spoken at length throughout this hearing about these cases. I have said what I’m going to say,” Jackson bluntly told Sen. Ted Cruz, R-Texas, who continued to press the judge over sentences she handed down in child porn cases.
Jackson sparred defiantly with Sen. Josh Hawley, who repeatedly pushed explosive allegations that the judge had endangered children by letting child porn offenders “off the hook.”
“My question is, do you regret it or not?” the senator asked of one of the cases, in which the offender was sentenced to three months behind bars.
“Senator, what I regret is that in a hearing about my qualifications to be a justice on the Supreme Court we’ve spent a lot of time focusing on this small subset of my sentences,” Jackson fired back.
Recusing from major affirmative action case
One of the first and most significant cases Jackson would hear as a justice, if confirmed, is a challenge to Harvard University’s use of race in college admissions. On Wednesday, Jackson said she plans to recuse herself from the case.
“That is my plan,” she told Cruz, a fellow Harvard graduate.
Jackson, a double Harvard graduate, currently sits on the school’s Board of Overseers that “provides counsel to the University’s leadership on priorities, plans, and strategic initiatives,” according to its website.
Jackson’s six-year term concludes on May 26, a school spokesperson said. Supreme Court oral arguments in the school’s case would be heard several months later.
Federal law stipulates that federal judges must recuse themselves from cases whenever their “impartiality might reasonably be questioned” or when “the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.”
Enforcement of the rules on the Supreme Court is by honor system, leaving it to each justice individually to decide when it’s appropriate to recuse from a case. Several independent ethics watchdogs have said it would be prudent for Jackson to step aside from the case if she’s on the bench.
Jackson mum on court expansion, cameras, shadow docket
The size of the Supreme Court at nine justices is determined by lawmakers in Congress – not the justices themselves. Nevertheless, several members of the committee asked Jackson about her view of progressive calls to expand the size of the court to compensate for its conservative majority.
“I’m a human being and I have an opinion on a lot of things. The reason why, in my view, it is not appropriate for me to comment is because of my fidelity to the judicial role,” she told Sen. Mike Lee, R-Utah. “I understand it’s a political question and that is precisely why I think that I am uncomfortable speaking to it.”
The current members of the court, including Jackson’s mentor Justice Stephen Breyer, have publicly come out against expanding the court.
“She refuses to rule out what the radical activists want,” Republican Leader Sen. Mitch McConnell said of her answer on the Senate floor. “I’m not sure Judge Jackson’s secret opinion on court-packing is as secret as she thinks it is.”
Several Democratic senators raised issues of transparency around the court — allowing cameras in the courtroom and reducing the use of so-called “shadow docket” cases to make significant pronouncements — and urged Jackson to consider them if she makes it there. She said she would discuss the matters with her would-be peers but declined to take a firm position.
Deciding porn punishments
Several Republicans sought to prompt Jackson to elaborate on the reasoning behind her sentences of some child pornography offenders to sentences below federal guidelines and below what government prosecutors requested.
“It seems as though you’re a very kind person and there’s at least a level of empathy that enters into your treatment of a defendant that some could view as — maybe beyond what some of us would be comfortable with respect to administering justice,” said Republican Sen. Thom Tillis, R-N.C.
Jackson explained that Congress tasked judges with delivering punishments aimed at rehabilitation, not just retribution, considering a multitude of factors beyond federal guidelines. (A Supreme Court decision authored by Justice Antonin Scalia said the guidelines could not be made mandatory, she noted.)
“My attempts to communicate directly with defendants is about public safety, because most of the people who are incarcerated via the federal system…will come out, will be a part of our communities again,” she said.
In a separate exchange, Sen. Lindsey Graham, R-S.C., disparaged Jackson for coupling prison sentences for child porn offenders with “substantial supervision” after release.
“You think it is a bigger deterrent to take somebody who’s on a computer looking at sexual images of children, in the disgusting way, is to supervise their computer habits versus putting ’em in jail?” he asked.
“No, senator. I didn’t say ‘versus,'” Jackson shot back.
Praise from Republicans
While GOP Sens. Graham, Cruz, Hawley and Tom Cotton, R-Ark., grabbed attention with their highly critical exchanges with Jackson, several Republicans on the panel offered more thoughtful and measured scrutiny of her record — including praise for Jackson after their questions had ended.
“You’re going to be a hero. You are already a hero to lots and lots of kids,” Sen. Ben Sasse of Nebraska told the nominee.
“I believe we still haven’t heard the judicial philosophy, and I wish I’d made more progress with you on that,” Sasse said, but “I want to thank you…for what you have endured and for spending time with us.”
Tillis, one of the few GOP members of the committee who sat in the chamber for nearly the entirety of the 19 hours of questions, also had notably warm words for the nominee.
“I thought you’ve done a great job over the last two days,” Tillis told Jackson. “I thought that you presented yourself well. There was a lot of pressure. And that demonstrates a certain temperament or poise.”
“I just want to commend you, your family, your daughter, who has been glowing every time you talk, and I appreciate your service,” he said.
Neither Sasse nor Tillis has said whether they would vote in favor of Jackson. Both opposed her elevation to the federal appeals court last year.
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