Judge Ketanji Brown Jackson sat for the second day of her Supreme Court nomination hearings where she answered questions from members of the Senate Judiciary Committee. Republicans previewed their attacks in recent days, focusing in part on her past work with Guantanamo Bay detainees.
Scroll down for key takeaways and analysis from our contributors, including Katie Phang, MSNBC host and legal contributor; Mehdi Hasan, host of MSNBC's "The Mehdi Hasan Show"; Hayes Brown, MSNBC Daily writer and editor; Jessica Levinson, professor at Loyola Law School and host of the "Passing Judgment" podcast; and Michael A. Cohen, author of the political newsletter "Truth and Consequences."
Jackson reaffirms her commitment to judicial restraint in effort to quell fears
To kick off Tuesday’s questioning, Sen. Dick Durbin, D-Ill. served up a number of questions that allowed Jackson to defend herself and her judicial record. These questions and her answers foreshadow one of the big themes that Jackson will come back to throughout the day — that she, and all judges, are already significantly constrained in what they can do, so there is no reason to worry that she will go rogue if appointed to the Supreme Court.
At one point Jackson explicitly stated that she must “stay in my lane.” In addition, she reiterated that judges must follow precedent, meaning prior court decisions. (Although the role of precedent, of course, has less effect when you’re on the highest court in the land and can overrule past decisions.)
Jackson will continue to argue that she is in the mold of many other judges and justices and that she is not, in fact, a politician with a robe. Nonetheless, she is likely to spend a lot of these hearings trying to quell the fears that she is just a left-wing liberal activist.
Jackson responds to Republican attacks
Sen. Durbin opened today's questioning of Jackson by playing the role of batting practice pitcher.
He asked Jackson a series of softball questions that are clearly intended to help her get ahead of the expected line of questioning from Republicans — in particular, Republican Sen. Josh Hawley’s debunked claims that Jackson is soft on child pornography.
Jackson was basically given a chance to respond in advance and stake out her position before Republicans go after her. Jackson’s answer on the issue of child pornography was, so far, the most powerful moment of the hearings, and probably makes it more difficult for Hawley to aggressively raise the issue — though knowing the Missouri senator, who delights on throwing bombs, it likely won’t dissuade him.
Durbin kicks off Q&A portion of the hearings
Senate Judiciary Committee Chair Sen. Dick Durbin, D-Ill., began the Q&A portion of Jackson's confirmation hearings shortly after 9 a.m. ET. At one point, he asked how she felt hearing Republicans claim that she has been too lenient in her sentencing of child pornography offenders.
"As a mother and a judge who has had to deal with these cases, I was thinking that nothing could be further from the truth," Jackson said. "These are some of the most difficult cases that a judge has to deal with ... It is important to me to make sure the children's perspectives, the children's voices are represented in my sentences."
"I understand how significant, how damaging, how horrible this crime is," she added.
GOP goes after Jackson's Gitmo work
In the lead-up to the hearings, Republicans have accused Judge Jackson of "defending terrorists."
You’ll be shocked to discover that it’s a lie. Judge Jackson never defended a single terrorist in the course of her legal career. She did defend four terror suspects.
To be a “terrorist,” you have to have been convicted in a court of law. None of the four Guantanamo Bay detainees that Jackson was assigned to defend while she was working in the federal public defender’s office – yes, assigned! – were convicted of the crime of terrorism.
In fact, all four of them were eventually released from their (illegal!) detention at Gitmo, without being convicted of any crime – let alone terrorism.
All of Jackson’s assignments, as the Associated Press noted, came “after a 2004 Supreme Court decision that those held at Guantanamo … had a right to challenge their detention in court.”
So what is Jackson supposed to apologize for? Doing her job as a defense attorney? Defending terror suspects, none of whom were convicted in a court of law or by a U.S. military commission?
In 1770, John Adams defended eight British soldiers accused of involvement in the Boston Massacre — two of whom were eventually convicted of manslaughter. Adams went on to help draft the Declaration of Independence and become the second president of this country.
But I guess we hold the Founding Fathers to different standards than a Black female nominee to the Supreme Court.
Republicans whine over Kavanaugh hearings
During the first day of Jackson's hearings, Republicans took turns airing their grievances over Supreme Court Justice Brett Kavanaugh's 2018 confirmation hearings. Sens. Lindsey Graham of South Carolina and Ted Cruz of Texas complained that Democrats personally attacked Kavanaugh, who faced an allegation of sexual misconduct at the time from Christine Blasey Ford. (Ford accused Kavanaugh of sexually assaulting her when they were both teenagers in 1982. Kavanaugh has repeatedly denied the allegation.)
"We will be fair and thorough, as people would expect us to be, but we won’t get down in the gutter like Democrats did during the Kavanaugh confirmation hearings,” Sen. Chuck Grassley, R-Iowa, said in his opening statement on Monday.
“No one is going to inquire into your teenage dating habits,” Cruz said during his remarks, appearing to shrug off an accusation of sexual assault as a silly, youthful “habit."
Jackson is very likely to be confirmed. Here's why.
Though Jackson is facing some predictable lines of attack from Republicans, her confirmation to the Supreme Court seems very likely given that she's been confirmed by the Senate for previous judgeships.
As MaddowBlog's Steve Benen wrote last month:
It’s possible, of course, that these Republicans would support her in 2021, only to oppose her in 2022 — if recent history has taught us anything, it’s that senators like Graham are not concerned about being accused of inconsistencies — but the fact that Jackson enjoyed bipartisan support in her last confirmation vote increases the likelihood that she’ll fare well in her next confirmation vote.
The key will be unanimity among Senate Democrats, which seems like a relatively safe bet.
The worst thing GOP senators have said in Jackson's hearings so far
Supreme Court nominee Judge Ketanji Brown Jackson's first day of hearings was a predictably long-winded exercise that did little to improve America's faith in the judgment of U.S. senators, wrote Jessica Levinson for MSNBC Daily.
But the day did give us a preview of the GOP's main critiques of Brown Jackson going forward.
"Senate Republicans coalesced around a few lines of attack against Jackson. One was the tired trope that judges who view the Constitution as a living document are merely politicians in robes," writes Levinson. "But perhaps the most troubling criticism made of Jackson was not just that she is soft on crime, although this was another line of attack; it was that she is soft on a particular type of criminal: those charged with possession of child pornography. Only Republican Sens. Josh Hawley and Marsha Blackburn espoused this particular line of attack. Conservative former federal prosecutor Andrew C. McCarthy, who opposes Jackson’s nomination on other grounds, called this criticism 'meritless to the point of demagoguery.'"
Jackson invoked Constance Baker Motley in opening remarks
Judge Jackson delivered a powerful, roughly 15-minute opening statement on Monday to close out the first day of her confirmation hearings with the Senate Judiciary Committee. In her remarks, she invoked Constance Baker Motley, the first Black woman to be serve as a federal judge. If confirmed, Jackson would be the first Black woman to serve on the Supreme Court.
"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," Jackson said.
SCOTUS history underscores absurdity of GOP complaints
From the moment Judge Jackson was nominated for the Supreme Court, top conservatives have fallen over one another to suggest she is a "token" pick nominated for her race and gender rather than her expertise or experience.
Republican Ted Cruz of Texas, who sits on the Senate Judiciary Committee, called President Joe Biden's vow to nominate a Black woman to the court “offensive." He claimed it sent the message to other Americans that they are “ineligible” because of their race or gender.
The argument makes no sense when you consider the history of the Supreme Court.
Since its establishment in 1789, 115 justices have served on the Supreme Court.
108 of them have been White men.
Five of them, or 4.3 percent, have been women.
Three of them, or 2.6 percent, have been people of color.
Two of them, or 1.7 percent, have been Black men.
And none of them have been Black women.
For most of American history, then, the pool of “qualified” candidates has excluded more than half the population of the United States, who were automatically deemed “ineligible.”
So what does it actually mean to be “qualified” in the eyes of Cruz? Unless Republicans consider only White men to be qualified?
