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What to know about day 2 of Ketanji Brown Jackson's confirmation hearings

Senators questioned the Supreme Court nominee about her expertise and experience.

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."

256d ago / 2:45 AM UTC

Sen. Blackburn caps a long day with one final, ridiculous question

Sen. Marsha Blackburn, R-Tenn., was the last lawmaker to question Jackson on Tuesday. But after more than 12 hours of testimony, few witnesses remained in the room by the time she spoke.

That was probably for the best.

Blackburn rehashed the same arguments many of her Republican colleagues had made throughout the day, touching on issues such as critical race theory, abortion and sentencing guidelines for child pornography.

At one point, Blackburn pushed Jackson to define womanhood. Jackson demurred, noting she was “not a biologist.” 

The exchange, with its clear transgender rights subtext, is sure to be heavily featured on Fox News and in future GOP fundraising emails.

Two Senate Judiciary Committee members — Sens. Thom Tillis, R-N.C., and Jon Ossoff, D-Ga. — didn't get a chance to question Jackson today. They will kick off tomorrow's hearing with their respective 30 minutes. 

256d ago / 12:14 AM UTC

GOP senators' clumsy haymakers keep missing their target

Republicans are throwing everything they can at Jackson in the hopes of eroding her credibility. But as we end the second day of hearings, their strategy doesn't seem to be working.

As The ReidOut Blog's Ja'han Jones writes:

In many ways, she embodies the instruction many Black parents give their kids to be twice as good as their competition if they hope to receive the accolades they deserve. So, given all this, how are Republicans attacking her? Clumsily. ...Republicans are throwing haymakers in these hearings, desperately hoping one connects and knocks Jackson off balance. So far, their impotent attacks are doing nothing but affirming her strength as a nominee.

256d ago / 11:44 PM UTC

Cotton enters the race to be today's most disingenuous questioner

As the second day of hearings drew to an end, Sen. Tom Cotton, R-Ark., entered the race for most disingenuous questioner. Cotton questioned Judge Jackson on an array of criminal justice issues. Specifically, he asked whether she knew what the average sentences for various offenses are, and then whether she thought those average sentences, without knowing more, are too high or too low. 

This sounds like a legal question, which would be fair to ask of a judicial nominee — except that it is not. As Judge Jackson repeatedly explained, those are policy determinations which are outside of her purview as a judge. 

The irony here is that Senate Republicans claim to be concerned that Judge Jackson will step out of her lane and act as a politician, not a judge. But in fact, that is exactly what Senate Republicans are trying to get her to do by unsuccessfully attempting to engage her in these inappropriate lines of questioning that ask for her to enter a policy debate, not a legal question. There is a reason that we have and will hear Judge Jackson tell us over and over and over again what a judge’s role is and why it is relatively narrow.

256d ago / 11:39 PM UTC

Sen. Hirono does her homework — and Republicans' cherry-picking backfires

Sen. Mazie Hirono, D-Hawaii, used some quick facts to highlight the hypocrisy of Republicans' performative outrage today over Jackson's allegedly lenient sentences for child pornography. During her allocated time, Hirono noted that multiple Trump-nominated judges confirmed by Republicans issued sentences that were below the sentencing guidelines in child porn cases.

"Do you think my Republican colleagues are soft on child pornography,” Hirono asked Jackson, just because they voted for federal judges who deviated from the sentencing guidelines.

"Senator, I'm not in a position to evaluate whether your colleagues are soft on crime because of their votes," Jackson responded. "I have no reason to believe that."

Jackson has also handed down sentences that exceeded sentencing guidelines in some child porn cases. Republicans chose not to mention those, not surprisingly. But Hirono showed exactly how cherry-picking facts can backfire for her colleague across the aisle.

256d ago / 10:38 PM UTC

Hirono recalls Jackson's biggest mic drop moment to date

Image: FILES-US-POLITICS-MCGAHN
Then-White House Counsel Don McGahn looks on during the Senate Judiciary Committee confirmation hearing for Judge Brett Kavanaugh on Capitol Hill on Sept. 4, 2018.Saul Loeb / AFP - Getty Images file

In questioning Jackson about her understanding of precedent, Sen. Maize Hirono, D-Hawaii, gave us a perfect excuse to remember the biggest mic drop moment in Jackson’s career to date.

In April 2019, the House Judiciary Committee issued a subpoena to former White House counsel Don McGahn to testify on his interviews with special counsel Robert Mueller. McGahn argued, as did the White House, that thanks to “absolute immunity” there was no way for Congress to force a member of the executive branch to testify.

Jackson, in her ruling, handed down a complete and total smackdown of this frankly absurd legal theory. It’s worth revisiting the most powerful portion of that opinion, not just for the ideals it defends but for the power of her writing:

Stated simply, the primary takeaway fromthe past 250 years of recorded American history is that Presidents are not kings. […] This means that they do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control. Rather, in this land of liberty, it is indisputable that employees of the White House work for the People of the United States, and that they take an oath to protect and defend the Constitution of the United States. Moreover, as citizens of the United States, current and former senior level presidential aides have constitutional rights, including the right to free speech, and they retain these rights even after they have transitioned back into private life.

Bear in mind, this was in the middle of then-President Donald Trump’s first impeachment scandal. While Trump may not have taken the lesson that Jackson issued to heart, it makes me look forward to any opinions she may write if confirmed to the Supreme Court.

256d ago / 10:23 PM UTC

Sen. Hawley misplaces his legal training (and empathy)

Sen. Josh Hawley, R-Mo., wasn’t the first Republican to bring up child pornography during this hearing. But his questioning was by far the most egregious. 

“I want you to help me understand,” Hawley said repeatedly, as he described all but the most lurid details of several pornography cases heard by Jackson, including the ages of child victims and some of the acts they were forced to undertake. 

Hawley homed in on one particular case in which Jackson gave an 18-year-old a three-month prison sentence, and showed empathy for the defendant during sentencing.

In response to the insinuation that she was soft on pedophiles, Jackson displayed some rare (and well-earned) outrage. She paused and lightly sucked her teeth before rightly noting that unlike Hawley, she had actually had to review the evidence in the cases he described. Those images will haunt her; he’s using them to showboat for political points.

As Jackson pointed out, in 2005 the Supreme Court overturned Congress’s attempt to make federal sentencing guidelines mandatory. Congress has not revised the law since then, so she was well within her rights to use her own discretion in such cases. Committee chair Sen. Dick Durbin, D-Ill., agreed that Congress had neglected this issue, and asked sarcastically whether Hawley had written a bill to correct this issue. 

Hawley is a lawyer himself. He knows how these things work and how sentencing works; he knows that prison terms, as Jackson noted, are not the only punishments handed down in sex offender cases. Nonetheless, he opted to spend his time pretending that he’s just some guy who heard that Jackson was overly lenient towards child abusers. But that context, like the concept of empathy, seems to have escaped him this afternoon. 

256d ago / 9:57 PM UTC

A disappointing but unsurprising response about courtroom cameras

People tend to be all for transparency, until there is a bright light pointed at their home or office. Supreme Court nominees and justices are no different. 

If you had a bingo card for Supreme Court hearings, “Do you support cameras in the courtroom?” would be on one of those squares. And the square next to that might read, “Senator, that is an interesting question, I’ll be sure to discuss that with my colleagues should I be lucky enough to be confirmed to the court.” 

So it may be disappointing but it’s no surprise that Judge Jackson provided what amounts to a non-answer when asked about her view of cameras at the Supreme Court. 

The Supreme Court should open their doors, literally and figuratively, and allow the public to see how our nation’s highest court functions. Let’s hope the court ultimately acts to shine more light on their work.

256d ago / 9:45 PM UTC

You ask, we answer: Jackson says 'all Americans should be proud' in this moment

One reader wondered whether Jackson is aware of the intense hope and pride many people are feeling in response to her historic nomination to the Supreme Court.

Jackson made clear throughout today's hearing that she understands how significant this moment is for many Americans. When asked by Sen. Richard Blumenthal, D-Conn., about serving as a role model to many people, particularly young Black women and girls, Jackson described feeling “humbled and honored.”

"I stand on the shoulders of generations past who never had anything close to this opportunity, who were the first and the only in a lot of different fields," Jackson said. "My parents, as I said, were the first in their families to have the chance to go to college. I've been the first and the only in certain aspects in my life so I would say that I agree with you that this is a moment that all Americans should be proud."

256d ago / 9:22 PM UTC

What Jackson's role in the 'but her emails!' scandal says about her impartiality

Sen. Chris Coons, D-Del., brought the receipts when defending Judge Jackson’s ability to be impartial. In 2016, when she was still a district judge, Jackson presided over a lawsuit from the Republican National Committee (RNC). The GOP had filed two Freedom of Information Act requests with the U.S. Agency for International Development, demanding “all emails between officials in 16 top positions at USAID and 10 Web domains connected to” former Secretary of State Hillary Clinton, her family and numerous top State Department officials.

Yes, that’s right, Jackson was involved in the “but her emails!” scandal that dominated the 2016 election. The RNC asked USAID to turn over the related emails right before the GOP and Democratic national nominating conventions — a clearly political, but apparently legally permissible, move. Jackson agreed with the RNC and ordered that USAID release an initial batch of 800 pages within the next month and come up with a timeline for future releases.

“The substance and timing of the case are really quite striking,” Coons said. 

Jackson admitted that she actually wasn’t aware of the upcoming conventions when she issued her ruling. But that, Coons said, is exactly the kind of thinking that senators should look for, because it means Jackson adjudicates “based on the facts and the law, and not as an advocate, activist, or partisan.”

256d ago / 7:59 PM UTC

Only one justice has this in common with Jackson

A graphic from The Washington Post comparing Judge Jackson’s background to the current members of the Supreme Court went viral this week, highlighting how singular her background is compared to her (very likely) co-workers-to-be. 

While she stands apart for her work as a public defender, she shares an important spot on her resume with just one other justice: If confirmed, she and Justice Sonia Sotomayor would be the only members of the court to have served as both a district court judge and an appellate judge. 

In other words, Jackson has not only reviewed cases that have already been decided like most current justices, she’s sat in judgment of the kind of jury trials that most people would find familiar. Sen. Sheldon Whitehouse, D-R.I., asked her to explain the way her shifting from one bench to another played out, and it’s a helpful look at how our justice system operates — and how that experience will help Jackson make decisions on the Supreme Court.

256d ago / 7:46 PM UTC

Sen. Cruz asks the hard questions about race, babies and (possibly) racist babies

“Do you agree with this book that is being taught with kids, that babies are racist?” 

That's a real quote from Sen. Ted Cruz, R-Texas. He and Judge Jackson apparently went to Harvard Law School at the same time and served on the law review at the same time. That history didn’t change the tenor of his attacks, however, as he essentially accused her of being a secret, reverse-racist advocate of critical race theory.

In doing so, Cruz managed to hit pretty much every single trope that Republicans have repeated on Fox News over the last few years. He attacked The New York Time’s 1619 Project and tried to frame it as thoroughly debunked by serious historians. (It wasn’t.) He cited Martin Luther King, Jr.’s speech during the March on Washington, arguing it was a full-throated argument in favor of colorblindness. (It wasn’t.) He suggested that critical race theory is being taught to children around the country in public schools. (It isn’t.)

 

And as part of what may be the weirdest “gotcha” attempt of the day, Cruz brought props. Jackson is on the board of the Georgetown Day School, a private school whose history of acceptance she defended on Tuesday. Cruz brought out several books that were either “assigned or recommended” by the school, including “The End of Policing” and “How to be an Anti-Racist.” (It is shocking to consider that a school might assign reading that provokes critical thought and discussion, but I digress.)

Then Cruz brought out a book and associated poster titled “Anti-Racist Baby.” Which brings us back to our opening quote. Jackson, to her credit, did not roast Cruz. She instead responded that she does not believe that “any child should be made to feel as though they are racist, or though they are not valued, or that they are less than, that they are victims, that they are oppressors.” She then reminded Cruz that the books he listed “do not come up as my work as a judge, which I am respectfully here to address.”

Jackson: 1

Cruz: 0

Racist Babies: TBD

256d ago / 7:41 PM UTC

Cornyn strikes out with 'war criminals' claim

Sen. Cornyn accused Judge Jackson of calling former Secretary of Defense Donald Rumsfeld and former President George W. Bush “war criminals” in a 2005 legal filing. 

“It seems so out of character of you,” Cornyn told Jackson.

First, Jackson said she couldn’t remember the exact phrasing she used in her habeas petition on behalf of Khi Ali Gul, a Guantanamo Bay detainee accused of terrorism. She added, however, that she “did not intend to disparage the president or the secretary of defense.”

I get it. She has to say that. But let’s be clear: No one should ever have to apologize for disparaging Bush or Rumsfeld.

Second, Cornyn was misquoting Judge Jackson. She never called the two men “war criminals” but she did refer to her client’s claim that he was tortured in detention by the United States – which is a war crime.

As law professor and MSNBC Daily columnist Steve Vladeck noted:

 

Third, the fact of the matter is that many experts have accused Bush and Rumsfeld of presiding over war crimes. That Rumsfeld has since passed away and Bush has now reinvented himself as a painter and pal of former first lady Michelle Obama does not change that fact. We cannot simply whitewash the darkest chapters of our own recent history.

256d ago / 7:33 PM UTC

Cruz pulls out props but Jackson doesn't break a sweat

Cruz came armed with children’s books and out-of-context quotes on poster boards. He started by vilifying critical race theory, referencing children’s books that do not inform her judicial methodology — or frankly do anything other than make him look childish. 

Judge Jackson responded by calmly but forcefully explaining her role as a judge, and why critical race theory would not influence her decision-making in that position.

 

Cruz then moved on to this now tired line of attack that Judge Jackson is soft on child pornography offenders. Cruz had posters but no proof to support his point. Judge Jackson directly explained why she is required, under congressional statute, to consider a variety of sentencing factors. In her next exchange with Sen. Chris Coons D-Del., Judge Jackson explained that she actually has handed down sentences requested by prosecutors. Cruz loses this round.

256d ago / 7:14 PM UTC

Jackson understands the ritualistic, counterintuitive confirmation hearing dance

There’s a bit of a ritualistic dance about Supreme Court confirmation hearings. A layman might assume that the point is to learn what Judge Jackson thinks on the various issues the justices may be asked to review. That’s the framing of most Republican senators’ questions to her so far, asking whether or not she agrees with, for example, amicus briefs she prepared while working as a private lawyer.

But Jackson knows better. Because in fact, jurists are theoretically expected to erect a wall between themselves and their interpretations of the law as written. Throughout Tuesday’s questioning, Jackson has refused to offer up her personal views on the law or policy. Instead, she has, whenever possible, cited Supreme Court precedent and federal statute.

When asked about her amicus brief prepared for the Cato Institute and others on Guantanamo detainees, she was quick to school Sen. Lindsey Graham, R-S.C., on what it means to work for a client as a lawyer. Likewise, when Sen. Amy Klobuchar, D-Minn., asked if she believes that the right to vote is a fundamental one, she emphasized that the Supreme Court has determined it is.

Even when it comes to the more theoretical or philosophical questions (see: the endless questions about stare decisis), Jackson has chosen to frame her answers as matters of established legal doctrine opposed to her own opinions.

Now, does she actually have strong feelings on the matters she’s being asked about? Probably! Much as we can assume that conservative nominees have no real love for Roe v. Wade even as they defend it as precedent. But such is the counterintuitive nature of these hearings. And Jackson, too, knows that this is actually not the forum to voice those views.

256d ago / 6:32 PM UTC

Republicans' judicial activism hypocrisy is showing — again

Pretty much every Republican senator today has argued against the dangers of judicial activism. Many have made arguments to the effect of, judges should not impose their judgment over the objections of elected leaders or the will of the voters. 

This is a recurring Republican talking point, but one that seems to magically disappear when courts make decisions they support. For example, it was only a few months ago that the Supreme Court overturned the Biden Administration’s vaccine mandate, in effect imposing its judgment over elected leaders and public health experts. Republican didn’t complain about that decision — they cheered it.

When the court considered multiple cases that would overturn Obamacare, Republican members of Congress were the loudest cheerleaders for scrapping the legislation, even though such a decision also would have defied the will of the people, who elected President Barack Obama and a majority of Democrats to Congress. Bottom line: Republicans hate judicial activism — except when it benefits them. They’re not alone in taking both sides of this argument, but their hypocrisy is far more overt, and thus more contemptible. 

256d ago / 5:30 PM UTC

The importance of Jackson's husband walking in her literal footsteps

If a picture is worth a thousand words, a video of Judge Jackson’s husband dutifully trailing one step behind her whenever she leaves or enters the Senate chamber is worth about 10,000.

Jackson has, of course, acknowledged that her nomination is historic; she would be the first Black woman to serve on our nation’s highest court. She has thanked her spouse, celebrated surgeon Dr. Patrick Jackson, for his support during this extraordinary moment. But all the thanks in the world may not hit home the way images of him, a white professional male, proudly standing and walking a beat behind his wife do. 

Image: Supreme Court nominee Judge Ketanji Brown Jackson walks with her husband, Patrick, before her confirmation hearings on March 22, 2022.
Supreme Court nominee Ketanji Brown Jackson walks with her husband, Dr. Patrick Jackson, before her confirmation hearing on March 22, 2022.Drew Angerer / Getty Images

When Justice Ruth Bader Ginsburg was alive, we often heard about how her husband, a respected lawyer in his own right, helped Ruth Bader become Justice Ruth Bader Ginsburg. Marty Ginsburg’s behind the scenes maneuvering for his wife’s nomination, in addition to his culinary skills, is the stuff of legend. 

Perhaps Patrick Jackson will follow not just in his wife’s literal footsteps, but in the figurative ones of Marty Ginsburg.

256d ago / 5:16 PM UTC

Women justices inch closer to a SCOTUS majority if Jackson is confirmed

Sen. Dianne Feinstein, D-Calif., noted that Judge Jackson would be just the sixth woman to serve on the Supreme Court. And, of even more import, Judge Jackson would join three other female justices on the bench: Elena Kagan, Sonia Sotomayor and Amy Coney Barrett.  

As a female trial attorney who has faced gender bias and racial prejudice in her professional career and personal life, as well as the mother of a precocious 7-year-old daughter, it’s inspiring to think that our Supreme Court could be comprised of so many women judges, especially those of color. 

The Supreme Court was established in 1789. It wasn’t until roughly two centuries later, in 1981, that the court saw its first female justice with Justice Sandra Day O’Connor’s confirmation to the bench. 

“See her, be her.” If that saying rings true, then future generations of accomplished women will one day be the majority on the Supreme Court.

256d ago / 4:54 PM UTC

What Graham got wrong — and right — in his Gitmo rant

MSNBC host and chief legal analyst Ari Melber broke down Sen. Graham's rant about Guantanamo Bay, one of the most dramatic moments of the hearings thus far. Graham made his fiery remarks after questioning Jackson about amicus briefs she's written for two cases before the Supreme Court regarding detainee cases.

"I don't know that it landed a glove on Judge Jackson," Melber said of Graham's efforts to criticize Jackson. He added: "It felt more like a chance for Sen. Graham to show he has a passionate view."

256d ago / 4:35 PM UTC

Cornyn muses whether gay marriage decision constitutes 'policymaking'

Sen. John Cornyn, R-Texas, accused Supreme Court justices of — when he disagrees with them — engaging in unnecessary policymaking. Specifically, he called out the court’s decision that gay marriage is a fundamental right which states cannot limit. The truth is that the Constitution provides guideposts, but few bright lines. It is a document meant to guide us for centuries; it is purposefully broad at times. 

This is why Supreme Court justices have powerful positions; their job is to interpret the Constitution. This, by definition, means justices must constantly make judgment calls about what is fundamental and what is not. This does not mean that justices are making policy or usurping the roles of our elected officials. 

256d ago / 4:32 PM UTC

GOP's 'soft on crime' claims are a lazy dog whistle

The idea that Jackson has been “soft on crime” is one of the easiest, laziest dog whistles that the GOP has deployed against her. (She’s Black so she likes criminals, some of her detractors would like you to believe.) But it’s been fascinating to watch Democrats work to inoculate her against those attacks by citing her family’s background.

Several times already during questioning, senators have brought up the fact that the Fraternal Order of Police endorsed her nomination. Jackson, in response to a question from Sen. Feinstein, spoke warmly of her family members who worked in law enforcement.

I know I already brought up Thurgood Marshall today, but there are clear parallels between attacks on Jackson and the questioning that Marshall faced.

“You talk about democracy and liberty and all these things; I think they are in jeopardy today in this country,” Sen. John McClellan, D-Ark., told Marshall in 1967. “Look at the riots everywhere. A sentiment has been built up over the country to the point where some people feel that, if you don't like the law, violate it.”

If you close your eyes, you’d swear that it was Sen. Josh Hawley, R-Mo., speaking today. No wonder Democrats are so eager to hype up Jackson’s law enforcement ties.

256d ago / 4:07 PM UTC

America's aging Senate highlights a clear generational divide

These Supreme Court hearings have already highlighted philosophical, political and ideological divides. But there’s a clear generational divide at work as well. This is the oldest Senate we have had in our nation’s history. The average age of an American senator is now almost 65 years old. And three of the oldest senators in this aging chamber are on the Senate Judiciary Committee: Sens. Chuck Grassley, Diane Feinstein and Patrick Leahy. Advancing age should not be a disqualification from office. Nonetheless, the differences in ages between the senators and Judge Jackson, who is 51, is stark. 

So if age is just a number, why does this matter? Judges are not computers and Judge Jackson’s approach to constitutional interpretation will be informed by her life experience — experience that differs from that of those who are performing her job interview. And when it comes to big issues like civil rights and discrimination, environmental protection, and the role of the executive branch, one’s personal number of trips around the sun could certainly inform one’s judicial methodology.

256d ago / 4:02 PM UTC

GOP fires off pathetic, anti-CRT tweet

Have you seen this pathetic tweet from the official GOP Twitter account?

“KBJ” crossed out and replaced by “CRT," short for critical race theory.

Never forget that “CRT” is a racist dog whistle. The constant invocation of “CRT” by the right has nothing to do with “critical” or “theory” and everything to do with “race.”

In my opinion, going after a Black nominee by screaming CRT — as GOP Sen. Marsha Blackburn of Tennessee did yesterday, and the GOP’s official Twitter account is doing today — is pure, unadulterated racism.

256d ago / 3:51 PM UTC

Roe v. Wade is 'settled law,' Jackson says

Jackson confirmed under questioning from Sen. Diane Feinstein, D-Calif., that she’d uphold abortion rights in any cases that come before her on the court. Specifically, Jackson said that she believes that Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey are the "settled law of the Supreme Court concerning the right to terminate a woman's pregnancy.”

Feinstein asked similar questions to Justices Amy Coney Barrett and Brett Kavanaugh at their confirmation hearings. Kavanaugh also answered at the time that Roe is “settled law” that has been reaffirmed repeatedly. Barrett, while agreeing that Roe was an important precedent, would not say whether or not the case was wrongly decided.

We’ll see how forthcoming the two conservative justices were in answering Feinstein when they offer their opinions in Dobbs v. Jackson Women’s Health Organization. That case is currently awaiting a decision after last year’s oral arguments — and depending on the outcome, how Jackson feels about Roe’s importance may be a moot point.

256d ago / 3:23 PM UTC

This is the Festivus Supreme Court hearing

Graham began his 30 minutes of questioning today by playing the role of George Constanza’s father on Festivus — the infamous “Seinfeld” holiday centered around the airing of past grievances. 

Image: A scene from Seinfeld where George's father says "I got a lot of problems with you people!"
NBC

First, Graham raised the allegedly unfair questioning of the most recent Supreme Court nominee, Amy Coney Barrett about her religious faith. And then he raised the Democratic filibuster of Janice Rogers Brown to a position on the U.S. Court of Appeals for the District of Columbia, which began in the first term of George W. Bush’s presidency. 

I get that airing grievances is pretty much 87 percent of Republicans talking points these days, but I feel confident that as these questions were being asked, somewhere, in an office building on Pennsylvania Avenue, a single tear descended down the cheek of Attorney General Merrick Garland.

Jokes aside, Graham’s line of question suggests Republican lawmakers are lacking ammunition with which to criticize Jackson.

256d ago / 3:16 PM UTC

Jackson declines to weigh in on court packing

Sen. Grassley asked Judge Jackson her position on court packing, to which she responded: “It is a policy question for Congress and I am particularly mindful of not speaking to policy issues. I am committed to staying in my lane of the system.” 

It was a very diplomatic answer regarding an issue that has generated a lot of furious chatter since the hurried confirmation of Justice Amy Coney Barrett in 2020. Court packing sometimes contemplates expansion of the number of justices, but it can also include the idea of putting as many judges on the bench that reflect a particular political or ideological position. To be clear, the Supreme Court can only be expanded by Congress and just last year, congressional Democrats pushed a bill to expand the Supreme Court from nine to 13 justices.

In response to that push, President Joe Biden created a commission to study expanding the size of the court, as well as factors such as whether there should be time limits on justices’ service on that bench and the types of cases heard. However, there have been nine justices on the Supreme Court since 1869 and efforts to change that number have failed. Based on the more moderate takes from leading Democrats such as House Speaker Nancy Pelosi and Sen. Sheldon Whitehouse, it’s not likely to occur anytime soon.

256d ago / 3:09 PM UTC

Graham's shameless Guantanamo Bay rant hinges on a nonsense statistic

Sen. Graham, one of the most hawkish members of the United States, went on a rant about Guantanamo Bay and re-offending, citing unclassified government estimates that the site has a 30 per cent recidivism rate. 

But this is a nonsense statistic. As Human Rights First noted back in 2017: 

“The classification of ‘reengaging’ or ‘recidivism’ is deceptive, since it presupposes that a detainee was involved in terrorist or insurgent activities before being captured and taken to Guantanamo. In fact, many detainees were taken to Guantanamo by accident. These were  cases of mistaken identity and cases in which people were captured by local militias or police and turned over to U.S. troops for enormous bounties.”

It is also worth pointing out that none of the four detainees who Judge Jackson represented during her time as a D.C. public defender went on to commit any known crimes after being freed from custody. None of them were found guilty of any crimes by a U.S. military tribunal or court of law.

They were — for want of a better word — innocent. 

Guantanamo Bay — the “gulag of our time,” to quote Amnesty International — continues to be a stain on the moral conscience of this nation. And Lindsey Graham should be ashamed of himself for using this Supreme Court confirmation hearing to try and drum up support for a discredited detention facility.

256d ago / 3:07 PM UTC

Leahy compares Jackson to Thurgood Marshall

Sen. Patrick Leahy, D-Vt., in opening his questioning to Jackson, noted that the last Supreme Court nominee with any significant experience as a defense attorney was none other than Thurgood Marshall.

It’s been 55 years since Marshall sat before the Senate Judiciary Committee as Jackson is now. At the time, he was the nation’s first Black solicitor general, charged with representing the U.S. in cases before the court he would eventually join. But he’d made his career as the head of the NAACP Legal Defense and Educational Fund. While he’s most well-remembered for his work on landmark civil rights cases like Brown v Board of Education, he also traveled the country offering defenses of Black Americans left vulnerable to the law’s abuses under Jim Crow.

That background was met with suspicion and outright racial animus from Southern Democrats, many of whom had held up Marshall’s nomination to join the Second Circuit Court of Appeals ahead of his becoming solicitor general. But despite that opposition, Marshall was confirmed by a 69-11 vote, making him the first Black justice on the Supreme Court. In the years since then, we’ve only had one other Black justice join the court — Clarence Thomas — and none with the background that Marshall brought with him. It’ll be a welcome change if and when she joins the court to uphold the legacy that Marshall established.

256d ago / 3:00 PM UTC

Graham's not-so-subtle religious questioning brings the cringe

That sound you just heard is thousands of Americans wincing while Sen. Lindsey Graham, R-S.C., pressed Judge Jackson on her faith.

Graham was trying to make a point about Judge Amy Coney Barrett’s faith and how it was addressed during her Supreme Court hearings in 2020. But the point mostly fell flat. Instead of proving anything about Barrett's hearing, it mostly reminded Americans that religious tests are distasteful. And that Republicans are using this hearing to re-litigate the perceived slights they claim to have endured during the confirmation hearings of Justices Brett Kavanaugh and Barrett.

257d ago / 2:11 PM UTC

Jackson's public defender experience is a major strength

Sen. Durbin asked Judge Jackson about her prior work as a federal public defender, a position she held from 2005 to 2007. And lest anyone argue otherwise, Jackson’s work was a critical, very real example of the Constitution at work.

As she told Durbin, “federal public defenders do not get to pick their clients.” Jackson did not choose to represent detainees at Guantanamo Bay; she was assigned to represent them.

For any client, Jackson was charged with the ethical duty and responsibility as a lawyer to do her job as a zealous advocate. All lawyers are required to provide that kind of representation for their clients. And Jackson got it right when she said: "Under our Constitution [they] are entitled to representation ... They are entitled to be treated fairly. That's what makes our system the best in the world ... That's what makes us exemplary."  

If confirmed, Jackson would be the first public defender on the Supreme Court. It’s not a disqualifying quality; it’s one that brings a much-needed perspective to the highest court in the land.

257d ago / 2:09 PM UTC

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.

257d ago / 1:43 PM UTC

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.

257d ago / 1:25 PM UTC

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.

257d ago / 12:56 PM UTC

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.

257d ago / 12:48 PM UTC

Republicans whine over Kavanaugh hearings

Image: Brett Kavanaugh speaks at the Senate Judiciary Committee hearing
Supreme Court Justice Brett Kavanaugh speaks during his confirmation hearings in Washington in 2018.Michael Reynolds / Pool via AFP - Getty Images file

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."

257d ago / 12:41 PM UTC

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. 

257d ago / 12:40 PM UTC

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.'"

257d ago / 12:38 PM UTC

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.

257d ago / 12:37 PM UTC

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?