5 Ways Republicans Will Take On SCOTUS Nominee Jackson

Ketanji Brown Jackson’s toughest questioning during Senate hearings this week will be from Republicans seeking to score political points by implying the Supreme Court nominee is soft on crime while pledging to avoid a repeat of past contentious hearings.

Heading into two days of questioning before the Senate Judiciary Committee, the 51-year-old federal appeals court judge has advantages: nine years on the bench, a Harvard pedigree, and a Democratic Senate majority with the power to confirm her on their own. President Joe Biden wants to see some GOP support for his first Supreme Court pick, and the few Republican votes she might win hinge on how she handles the queries.

On Monday’s opening day, Ranking Republican Chuck Grassley vowed that GOP questioning will be respectful even though he and most of the other 10 GOP panel members are hinting they’ll oppose her. Senator Lindsey Graham of South Carolina may join them, despite backing every Supreme Court nominee since he came to office in 2003. On the panel are three prospective 2024 GOP presidential candidates — Ted Cruz of Texas, Tom Cotton of Arkansas and Josh Hawley of Missouri — and each will be looking to use the hearings to polish their appeals to the Republican base.

Here’s a look at some of the GOP’s top lines of attack:

They’ll question whether she’s soft on crime

Jackson was a federal public defender from 2005 to 2007, and served on the U.S. Sentencing Commission from 2010 to 2014. The commission crafts the formula federal judges look to when imposing prison terms. While she was on it the penalty range for crack cocaine offenses was cut, as they also were more generally for drug offenses.

Republicans want to know whether those experiences mean she is “soft on crime,” which jibes with GOP messaging about the need for “law and order” heading into the November congressional election. For his part, Hawley says he’ll ask about seven cases when, as a district judge, Jackson sentenced someone convicted of child pornography possession to what he said was a prison terms below the sentencing guidelines and what prosecutors sought.

“I think there’s a lot to talk about here,” Hawley told Jackson. The White House called any suggestion she went easy on pornographers baseless and Democratic Senator Richard Blumenthal labeled the line of questioning “meritless to the point of demagoguery.”

They’ll press her to lay out her judicial philosophy

During Jackson’s appeals court confirmation proceedings last year, she said she didn’t have a “judicial philosophy per se” but was bound as a lower court judge by Supreme Court precedents. She said she had “a duty to avoid commenting on, or providing personal views of, disputed legal matters such as the most appropriate method of interpreting the Constitution.”

Some Republicans and conservative groups question how it’s possible she has no philosophy after serving on the bench and clerking for three judges, including the one she would replace, retiring Justice Stephen Breyer. They prefer “originalists,” who interpret the Constitution according to its original meaning, and want to see if they can garner any indication that she might, as they say, “legislate from the bench.”

“Someone who is as accomplished as you are, who has spent years engaging and thinking about our Constitution and laws has surely formed a judicial philosophy,” Senator John Cornyn of Texas said Monday. “This is not your first rodeo.”

They’ll question her work representing alleged terrorists

Republicans say they want to know about Jackson’s representation of four alleged terrorists held at Guantanamo Bay, Cuba. She was assigned their cases as a federal public defender, and then continued such work later at the law firm Morrison & Foerster. The matter also came up during her confirmation hearings for the appeals court, with Cotton asking her if she “ever represented a terrorist at Guantanamo Bay?”

Some Democrats on Monday pointed out as a public defender she was providing experienced representation for people who couldn’t afford a lawyer and ensuring the accused received their right to a defense. But the matter is clearly a flash point for Judiciary Committee Republicans.

“You used your time and talent not to serve our nation’s veterans or other vulnerable groups, but to provide free legal services to help terrorists get out of Gitmo and go back to the fight,” GOP Senator Marsha Blackburn of Tennessee said to Jackson on Monday.

They’ll ask whether she’ll recuse from affirmative action case

The court is expected to consider abolishing race-conscious college admissions in cases involving suits against Harvard College and the University of North Carolina. Jackson has served on Harvard University’s board of overseers since 2016 — her term expires this spring — and several Republicans have indicated they will ask her to recuse herself from that case.

The cases will be among the court’s first arguments when its next term starts in October. Given the court’s 6-3 conservative majority, Jackson’s disqualification probably wouldn’t change the outcome, but it would mean the court’s only Black woman wouldn’t weigh in.

They’ll ask about reversals of her district court rulings

While only about 2% of Jackson’s rulings as a district judge were reversed at the appellate level, Republicans are likely to scrutinize a couple of opinions that were turned back and that conservative groups say smack of overreach. In particular, in 2020 a three-judge panel unanimously reversed Jackson after she blocked the Trump administration from making more people subject to deportation on an expedited basis. Jackson had faulted the administration for not weighing “the considerable downsides of adopting a policy that, in many respects, could significantly impact people’s everyday lives.”

But the three-judge panel, which included two Democratic appointees, said Congress gave the Homeland Security secretary broad power to decide what categories of people are eligible for expedited removal.

Laura Litvan and Greg Stohr report for Bloomberg News.

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