One day after Republican senators promised they wouldn’t levy personal attacks against Supreme Court nominee Ketanji Brown Jackson, several of them generated a storm of misleading — and often offensive — attacks against her.
On Monday, the first day of Jackson’s confirmation hearing, several Republicans complained about the way that Justice Brett Kavanaugh was treated prior to his confirmation, after Kavanaugh was credibly accused of sexually assaulting a woman while he was in high school.
Multiple Republican senators promised not to levy similarly “personal attacks” against Jackson. “No Republican senator is going to unleash an attack on your character when the hearing is almost over,” Sen. Lindsey Graham (R-SC) promised Jackson.
It’s not hard to guess what happened next. Tuesday, the first day of the hearing where senators on the Judiciary Committee could actually ask questions of Judge Jackson, included allegations from five Republican senators that Jackson is soft on child pornography offenders.
Before those misleading attacks kicked off in real force, Graham stormed out of the hearing after attacking Jackson for providing legal counsel to Guantanamo Bay detainees — and suggesting that by doing so, Jackson endangered national security. Two other Republican senators attacked the high school that one of Jackson’s daughters attends.
Sen. Ted Cruz (R-TX) spent much of his question time on Tuesday criticizing Georgetown Day School — Jackson is a member of this school’s board of trustees, and she told Cruz that she was drawn to the school because it was founded to provide a racially integrated education at a time when Washington, DC’s public schools were segregated.
Cruz attacked the school because, he said, it teaches books he finds objectionable by Boston University historian and National Book Award-winning author Ibram X. Kendi. Cruz also accused Jackson of being a proponent of critical race theory, an academic framework for examining how racism is embedded in America’s laws and institutions. He did this even though Jackson said that critical race theory has “never been something I’ve studied or relied on” as a judge.
The Republican Party tweeted a similar attack on Jackson shortly before Cruz brought up critical race theory at the hearing.
The most inflammatory — and, sadly, the most predictable — allegation against Jackson was that she’s spent her career trying to protect sexual predators, and specifically child pornographers. Sen. Josh Hawley previewed this attack on Twitter last week, and at least four other senators, Cruz and Sens. Mike Lee (R-UT), Marsha Blackburn (R-TN), and Tom Cotton (R-AR), brought versions of it up on Monday or Tuesday. The broad strokes of this allegation are false, and the details of it rely on a mendacious reading of federal sentencing policy.
Hawley’s dishonest attack on Jackson, briefly explained
The gravamen of Hawley’s attack is that, in seven cases involving child pornography offenders, Jackson sentenced these offenders to less prison time than federal sentencing guidelines recommended. This allegation is narrowly truthful — Jackson did, indeed, sentence these offenders to a prison term below that recommended by the guidelines — but this is the ordinary practice within the federal judiciary.
The Federal Sentencing Guidelines are an advisory manual that recommend a sentencing range for various offenses to federal judges. But the consensus view among judges and sentencing policymakers is that these guidelines recommend sentences that are too harsh for “nonproduction” child pornography crimes — that is, crimes where the offender views or distributes child sexual abuse material but does not produce it.
According to a 2021 report by the US Sentencing Commission, “the majority (59.0%) of nonproduction child pornography offenders received a variance below the guideline range.” When judges do depart downward from the guidelines, they typically impose sentences that are more than 50 months lower than the minimum sentence recommended by the guidelines. Indeed, in a majority of the child pornography cases heard by Judge Jackson, the prosecution recommended a below-guidelines sentence.
It’s also worth noting that the guidelines are a blunt instrument that take only limited account of the particular circumstances of an individual offender’s actions. Before a criminal defendant is sentenced, probation officials recommend a sentence tailored to their specific circumstances. And Jackson handed down sentences that were at or above the probation office’s recommendations in five of the seven cases identified by Hawley.
Numerous independent fact-checkers examined this attack on Jackson and determined that it is bogus. The New York Times said Republicans are “distorting” Jackson’s record. The Associated Press said that Republicans “twist Ketanji Brown Jackson’s judicial record.” ABCNews warned of “a flurry of misleading allegations by Republican Sen. Josh Hawley.” Even the conservative National Review described the allegations against Jackson as a “smear” that “appears meritless to the point of demagoguery.”
Cruz and Hawley paid particular attention to one case — that of an 18-year-old Wesley Hawkins. Hawkins was still in high school when he committed his offense, which included sharing child abuse images and videos online and with an undercover detective. A psychological evaluation of Hawkins determined that “there is no indication that he is sexually interested in prepubescent children,” and that “his interest in watching teens engaged in homosexual activity was a way for him to explore his curiosity about homosexual activity and connect with his emotional peers.”
Although the guidelines recommended a minimum sentence of 97 months in prison for Hawkins, even the prosecution felt this was too harsh. Prosecutors recommended two years in prison for Hawkins, and Jackson sentenced him to three months of incarceration plus an additional 73 months of supervised release.
As Jackson explained during the hearing, all child pornography crimes are “heinous and egregious,” because the mere act of looking at such images helps create a market for content that can only be produced by abusing a child. But federal law requires judges to hand down a sentence that is “sufficient, but not greater than necessary” to punish a particular offender. And, in Hawkins’s case, the prosecution, the defense, probation officers, and ultimately Jackson all agreed that the guidelines’ recommended sentencing range was much too high.
Though these allegations are unlikely to derail Jackson’s confirmation — when crucial Sen. Joe Manchin (D-WV) was asked about Hawley’s attack on the judge Monday, Manchin responded by questioning Hawley’s credibility — the stakes here are very high.
For one thing, at least according to polling data, a simply astonishing percentage of Republicans believe or believed in conspiracy theories tying top Democrats to child sex trafficking — as much as half of all Donald Trump supporters, according to a 2020 poll. Last year, 15 percent of Americans said they believed Satan-worshiping pedophiles ran the country.
Perhaps progressives or media don't see the QAnon signaling, or assume no-one buys it.— Don Moynihan (@donmoyn) March 20, 2022
That is a mistake.
About half of Republicans believe Democratic leaders are engaged in child sex trafficking! Thats a huge constituency! 2/ https://t.co/Yd1fNp47AZ pic.twitter.com/yXmtYM5BbS
The false belief that top Democrats are in league with child abusers is the core of conspiracy theories such as QAnon or Pizzagate. These conspiracy theories have inspired violence in the past. In 2016, for example, a man with an assault rifle opened fire in a DC pizzeria because he falsely believed that Hillary Clinton and her former campaign chair John Podesta ran a child sexual abuse ring in the restaurant’s basement.
If Republicans succeed in derailing Jackson’s nomination with these kinds of allegations, that will teach the GOP that this kind of allegation works. It will teach them that the apparently quite large minority of Americans who believe in ridiculous conspiracy theories about Democrats and sex offenders are a powerful political force that can be tapped into.
But even if they don’t succeed, Republicans are tapping into the ugliest ideas that exist in American society. They’re throwing around allegations that rely on distorted versions of someone’s actions. And they’re doing so in the hopes of derailing the nomination of a judge with an entirely mainstream record.
If this works, things are likely to get much uglier very fast.
Correction, March 23, 1 pm ET: A previous version of this article misstated the state Marsha Blackburn represents. It is Tennessee.