Vox - Supreme Court nominee Ketanji Brown Jackson: News and analysishttps://cdn.vox-cdn.com/community_logos/52517/voxv.png2022-06-30T12:36:54-04:00http://www.vox.com/rss/stream/227590732022-06-30T12:36:54-04:002022-06-30T12:36:54-04:00The US’s first Black woman senator on what Ketanji Brown Jackson brings to the Supreme Court
<figure>
<img alt="" src="https://cdn.vox-cdn.com/thumbor/ezOONiua_-s9od2dzRCUzxHDR48=/10x0:3213x2402/1310x983/cdn.vox-cdn.com/uploads/chorus_image/image/70722819/1387129960.0.jpg" />
<figcaption>US Supreme Court nominee Judge Ketanji Brown Jackson testifies during her confirmation hearing before the Senate Judiciary Committee March 22, in Washington, DC. | Anna Moneymaker/Getty Images</figcaption>
</figure>
<p>Former Sen. Carol Moseley Braun describes the historic significance of this moment. </p> <p id="GTPnGg"><em><strong>Editor’s note, June 30: </strong></em><em>This story was updated after Ketanji Brown Jackson was sworn in to office as an associate justice of the US Supreme Court.</em></p>
<hr class="p-entry-hr" id="a4f5MM">
<p id="ooAcfK">For Carol Moseley Braun, the first Black woman elected to the Senate, much of what Judge Ketanji Brown Jackson experienced during her confirmation process for the Supreme Court felt all too familiar. </p>
<p id="E84ufP">“There’s a word, and the word is called misogynoir,” she tells Vox. “And that word describes the double whammy that women of color have to face: You’re vulnerable on the issue of gender, and you’re vulnerable on the issue of race.”</p>
<p id="58n0OZ">Moseley Braun, who previously sat on the Judiciary Committee, emphasizes that Jackson brings a valuable new perspective to the court that’s simply missing at the moment. During her time in the Senate — which doesn’t currently have any Black women lawmakers — Moseley Braun experienced many of the same gaps. </p>
<p id="p6GZ8n">“It’s a matter of people in their ignorance not recognizing racism when they see it, not recognizing misogyny when they see it,” she said.</p>
<p id="qRyNJZ">Jackson — who has been a federal district court judge, appeals court judge, and public defender — made history when she was sworn in to the Supreme Court on Thursday. The Senate previously voted 53-47 in favor of her nomination, making Jackson the first Black woman to become a Supreme Court justice. </p>
<p id="9wpH7m">This past April, Moseley Braun sat down with Vox to discuss the significance of this moment and the need for more representation on the federal bench and in Congress. </p>
<p id="xEY6sw">This interview has been edited and condensed for clarity. </p>
<h4 id="1fv75s">Li Zhou</h4>
<p id="GLk3lF">How would you describe the significance of Jackson’s confirmation to the Supreme Court?</p>
<h4 id="z64fnM">Carol Moseley Braun </h4>
<p id="Q23jye">I’m excited, because the fact is that we’ve never had a [Black woman] on the Supreme Court, as you know, in all these years since 1789. And so she’s the first, of more than a hundred Supreme Court justices. She’s breaking new ground. </p>
<p id="Ryf0UN">And it matters greatly because, quite frankly, the reason I ran for the Senate was because Thurgood Marshall and the Warren Court had changed the course of my life. They got rid of segregation, so I was able to get a decent education and I didn’t have to sit at the back of the bus. I wasn’t denied service because of my color. And so, you know, [the Supreme Court] may make a huge difference in the way this country develops. And so her point of view and her perspective and her life experiences will give the Supreme Court a great deal of new information that they don’t right now have. And it’s going to be very, very important and significant. </p>
<p id="6JhedC">I don’t think she’s going to hold back in terms of trying to influence her other colleagues on the Court.</p>
<h4 id="evRalA">Li Zhou</h4>
<p id="V2sJQb">Can you talk about what the pressure is like to be “the first,” as someone who was the first Black woman elected to the Senate?</p>
<h4 id="uct0E8">Carol Moseley Braun </h4>
<p id="9gqlf1">The fact is that when you’re the first, you get special burdens, and people expect you to not only excel but to do it in a way that fits with all their different cultural expectations. </p>
<p id="XK9JPL">That’s very difficult. But if you followed her during the confirmation hearings, she has such grace and such aplomb and such diplomacy. She really is a role model. I mean, I sat there and watched her and was in awe because frankly, I would have slapped some of those guys. I have a much shorter fuse than she does. To sit there and be composed and be judicial, all that while they ask, I mean, ridiculous questions. And they were really mean to her — and this is not new. </p>
<p id="2Jjetx">This started with <a href="https://www.npr.org/sections/itsallpolitics/2012/12/19/167645600/robert-borks-supreme-court-nomination-changed-everything-maybe-forever">Robert Bork</a>, frankly. And from that time on, it’s been a matter of “gotcha.” And a matter of, you know, treat nominees like they’re less than human. And the fact that the Republicans took the bait and went and did that, I think is just reprehensible. </p>
<h4 id="1g8ke3">Li Zhou</h4>
<p id="qajWP5">What was your overall reaction to how lawmakers treated Jackson at the hearings? </p>
<h4 id="3T7DJP">Carol Moseley Braun<strong> </strong>
</h4>
<p id="5AUcw0">To suggest that she was somehow less than qualified, less than competent, when, you know, most of them couldn’t even polish your boots. But the fact of the matter is, she is eminently qualified. Everybody recognizes that. And they’ve got no place to go in terms of the qualifications game. </p>
<p id="Q40zxV">But, again, that harkens back to some real antique racism that makes Black people into being less intelligent and less capable and less competent than anybody else. And so that’s where they were trying to go, but it didn’t work. It didn’t stand with the harsh light of reality and her record. She’s had a tremendous record that goes back years. And she’s ruled on so many different iterations of the different questions that our country faces that there was nothing they could do with her.</p>
<h4 id="w1AZSX">Li Zhou</h4>
<p id="V94ygN">What did you make of the misleading questions that people were asking suggesting Jackson was soft on crime, unusually lax on child porn sentencing, and about critical race theory?</p>
<h4 id="3tMn4Z">Carol Moseley Braun </h4>
<p id="V1SkxL">Again, it’s another harkening back to trying to play the race card. That’s what was going on. </p>
<p id="qmE3dW">What surprises me is that not more people have called it out for what it was. It’s just straight-up unvarnished racism.</p>
<p id="Aq1vmW">Quite frankly, the whole thing on “soft on crime.” It’s like, why would they make Democrats into being soft on crime? It’s like we’re supposed to be — I guess because she’s Black, she’s softer on crime and not patriotic. Why would you go there? </p>
<p id="3PS4Jd">That’s one of the older, racist tropes that Black people have had to contend with, the assumption that somehow there’s this criminality in our community that doesn’t exist anywhere else, which is insane and <a href="https://www.theatlantic.com/video/index/404674/enduring-myth-of-black-criminality/">disproved by the facts</a>.</p>
<h4 id="wrIjvz">Li Zhou</h4>
<p id="knrYUP">How did Jackson’s confirmation hearing compare to others that you sat on when you were on the Judiciary Committee?</p>
<h4 id="Wz9uRw">Carol Moseley Braun </h4>
<p id="1Iz9oi">Well, you know, it was much harder. They did not come after Ruth Bader Ginsburg like that, or Stephen Breyer like that. Again, because she’s Black and a Black woman, they were able to reach for the most stale, outmoded, racist tropes to try to trip her up. And that’s what they were trying to do. I don’t think it worked. </p>
<p id="LLu3TR">There’s a word, and the word is called misogynoir. And that word describes the double whammy that women of color have to face: You’re vulnerable on the issue of gender, and you’re vulnerable on the issue of race. And when you put those two together, it can be a very toxic trap. And she was able to navigate all the ins and outs in a way that left her unscathed. And so she made me very, very proud watching her.</p>
<h4 id="sDHyrP">Li Zhou</h4>
<p id="yFj5bJ">When it comes to legislation, Democrats have struggled to deliver things like voting rights and police reform. What message do you see Judge Jackson’s nomination sending to Black voters about the Democratic Party?</p>
<h4 id="kIupSs">Carol Moseley Braun </h4>
<p id="sG2kVj">Well, I think it’s a very positive message.</p>
<p id="3bHFBV">This was one of the issues, at least in the Black female community, that I heard more than anything else was, you know, [Barack Obama] didn’t nominate a Black woman. </p>
<p id="Kwx8xO">Joe Biden may have redeemed the Democratic Party with this nomination because he showed that he’s not afraid to take on the right wing and the Donald Trump party. </p>
<h4 id="kuIaN2">Li Zhou</h4>
<p id="OrbhAj">What perspectives are missing in the Senate, which currently doesn’t have any Black women lawmakers? </p>
<h4 id="lBsG34">Carol Moseley Braun </h4>
<p id="mzvO31">The whole idea of a democracy is that you bring together different perspectives, that it’s a government by the people, of the people. And if you don’t have Black people in these legislative bodies, on the Supreme Court, what you miss out on is the perspective and life experiences of a particular group of Americans, people who have been through it with this country. </p>
<p id="oMnBny">I just got off the phone with the World War I Commission, trying to build a memorial to the Doughboys. We had 350,000 Black soldiers fighting to make the world safe for democracy. And when they came home, they would get lynched. So the point is that Black people have contributed in every possible way to this country and ought to have a voice in making decisions about its direction. </p>
<p id="qwOvKM">That we don’t have any Black women in the Senate means that those perspectives are absent in terms of its decision-making and policy and debates. When I think back, I mean, the <a href="https://www.washingtonpost.com/archive/politics/1993/07/23/senate-bows-to-braun-on-symbol-of-confederacy/3f88095a-2253-4fb9-b410-8ce75dbb308c/">Confederate flag had this renewable patent</a> that passed as a matter of routine until I got to the Senate. And when I got there, I said, “Oh, guys, you can’t do this. This is offensive. And this is why.” It turned out I wound up winning and defeating the patent on the Confederate flag, on something that nobody had even noticed before. And that’s the value. </p>
<p id="PlVP34">It’s not a matter of people actively trying to be racist. It’s a matter of people in their ignorance, not recognizing racism when they see it, not recognizing misogyny when they see it. </p>
https://www.vox.com/23015036/ketanji-brown-jackson-supreme-court-historyLi Zhou2022-04-07T14:18:28-04:002022-04-07T14:18:28-04:00The paradox of Ketanji Brown Jackson
<figure>
<img alt="" src="https://cdn.vox-cdn.com/thumbor/MiQnMaA32XU8_DoYq4S6eqX89wg=/233x0:3433x2400/1310x983/cdn.vox-cdn.com/uploads/chorus_image/image/70722679/AP22080545497108.0.jpg" />
<figcaption>Supreme Court nominee Judge Ketanji Brown Jackson listens during her confirmation hearing before the Senate Judiciary Committee in Washington, DC, on March 21. | Jacquelyn Martin/AP</figcaption>
</figure>
<p>The Supreme Court is more diverse than it has ever been, and more hostile to political equality than any Court since the 1950s.</p> <p id="x0RndC"><em><strong>Editor’s note, June 30, 12:10 pm: </strong></em><em>Ketanji Brown Jackson was sworn into office as an associate justice of the United States Supreme Court on Thursday, June 30, after Justice Stephen Breyer retired. The following story text was last updated after her Senate confirmation vote in April.</em></p>
<p id="eH9FLL">Well, it’s official. The Senate confirmed Judge Ketanji Brown Jackson to the Supreme Court on Thursday, April 7, by a 53-47 vote.</p>
<p id="iZDMuz">When soon-to-be Justice Jackson takes her seat this summer (retiring Justice Stephen Breyer plans to stay on until “<a href="https://www.supremecourt.gov/publicinfo/press/Letter_to_President_January-27-2022.pdf">the Court rises for the summer recess this year</a>”), the Supreme Court will be more diverse than it has ever been. Not only will a Black woman serve as a justice for the first time in American history, but the Court will, for the first time, have four women. It will also have three people of color for the first time in its history.</p>
<p id="wTRE2r">It’s a historic moment. As Sen. Cory Booker (D-NJ) said at the beginning of Jackson’s confirmation hearing, her confirmation <a href="https://www.insidernj.com/press-release/video-booker-delivers-opening-statement-at-the-nomination-hearing-of-judge-ketanji-brown-jackson/">shatters a glass ceiling</a>: “It’s a sign that we as a country are continuing to rise to our collective, cherished, [and] highest ideals.”</p>
<p id="BHE8Cf">But Jackson will join a Court that has, at best, a tenuous relationship with those ideals. </p>
<p id="XQVmEv">The current Court, with its Republican supermajority, is <a href="https://www.vox.com/22575435/voting-rights-supreme-court-john-roberts-shelby-county-constitution-brnovich-elena-kagan">more hostile toward voting rights</a> — and specifically to the proposition that states may not write election laws that discriminate on the basis of race — than any Court since the Voting Rights Act became law in 1965. Indeed, the current Court may be <a href="https://www.vox.com/2022/3/23/22993107/supreme-court-wisconsin-race-gerrymander-voting-rights-act-legislature-elections-commission">more hostile to efforts to achieve racial equality</a> than any Court since <a href="https://supreme.justia.com/cases/federal/us/347/483/"><em>Brown v. Board of Education</em></a><em> </em>(1954). </p>
<p id="bY1rUC">Jackson’s confirmation means that she will have a seat at the literal table where the justices meet to cast their initial votes in argued cases. But her voice is likely to do little to sway her six Republican colleagues in the most closely watched and most important cases.</p>
<figure class="e-image">
<img alt=" " data-mask-text="false" src="https://cdn.vox-cdn.com/thumbor/P_pHtCqr4FIxymAF8q0ISH9TDA4=/800x0/filters:no_upscale()/cdn.vox-cdn.com/uploads/chorus_asset/file/23366828/conferenceRoom.jpg">
<cite>Courtesy of Supreme Court of the United States</cite>
<figcaption>The room where it happens — and where the future Justice Jackson’s arguments are likely to be disregarded by her Republican colleagues.</figcaption>
</figure>
<p id="qKCy5k">As Irin Carmon wrote during the week of Jackson’s <a href="https://www.vox.com/2022/3/22/22991834/supreme-court-ketanji-brown-jackson-republican-josh-hawley-ted-cruz-child-pornography">nasty, brutish, and far-too-long confirmation hearing</a>, “if there’s any problem with Jackson’s likely confirmation to the Court, it’s that she may <a href="https://nymag.com/intelligencer/2022/03/does-the-supreme-court-deserve-ketanji-brown-jackson.html">give voters more confidence</a> in an institution that currently doesn’t deserve it.” </p>
<p id="AnSIcK">Jackson’s mere presence on the Court is a tribute to more than 400 years of struggle to ensure that all Americans will enjoy the blessings of political equality, regardless of race or gender. But she joins it at the very moment that the Court is taking the wrong side in this struggle.</p>
<h3 id="LmhK8Z">The Supreme Court’s recent behavior is deeply alarming</h3>
<p id="Ens17H">The Court’s recent decisions are profoundly troubling, particularly when it comes to voting rights.</p>
<p id="0DoIZg">The cornerstone of political equality in the United States is the Voting Rights Act, which ensures that no one is denied the right to vote because of their race. For nearly 350 years, from when the first enslaved Africans arrived on American shores, until President Lyndon Johnson signed the Voting Rights Act into law, much of what is now the United States was an apartheid state or worse — denying political equality to Black people even after the chains of slavery were broken.</p>
<p id="QvstxW">The Voting Rights Act may be the most swiftly effective civil rights law in American history. Just two years after it became law, Black voter registration in the Jim Crow fortress of Mississippi <a href="https://www.vox.com/22575435/voting-rights-supreme-court-john-roberts-shelby-county-constitution-brnovich-elena-kagan">had grown from 6.7 percent to nearly 60 percent</a>. </p>
<p id="ZRb54t">But the Court’s Republican majority, in Justice Elena Kagan’s words, “<a href="https://www.supremecourt.gov/opinions/20pdf/19-1257_g204.pdf">has treated no statute worse</a>” than the Voting Rights Act. Among other things, the Court dismantled the law’s “preclearance” regime, which required federal officials to screen new voting laws in states with a history of racist voting practices, in <a href="https://scholar.google.com/scholar_case?case=4053797526279899410&hl=en&as_sdt=6&as_vis=1&oi=scholarr"><em>Shelby County v. Holder</em></a> (2013). And it’s made it nearly impossible for plaintiffs alleging <a href="https://www.vox.com/2020/4/23/21228636/alito-racism-ramos-louisiana-unanimous-jury">intentional discrimination by state lawmakers</a> to prevail in court. </p>
<p id="gl2hen">Nor is the Court likely to limit its attack on the franchise to the Voting Rights Act. At least four Republican members of the Court support a legal theory, known as the “<a href="https://www.vox.com/22958543/supreme-court-gerrymandering-redistricting-north-carolina-pennsylvania-moore-toth-amy-coney-barrett">independent state legislature doctrine</a>,” that the Supreme Court has repeatedly rejected over the course of more than a century. In its strongest form, this doctrine would allow state lawmakers to ignore their state governor’s veto power, their state constitution, and their state’s courts when writing laws governing federal elections — potentially allowing gerrymandered legislatures in states like Wisconsin to write laws that would prevent Democrats from competing in presidential elections.</p>
<p id="LOPODK">Many Republicans, both on and off the federal bench, claim that such avulsive legal changes are mandated by <a href="https://www.vox.com/21497317/originalism-amy-coney-barrett-constitution-supreme-court">“originalism” or “textualism,”</a> the belief that laws should be interpreted exclusively based on how they were originally understood when they were enacted. Indeed, some Republican senators claim they will oppose Jackson because she <a href="https://www.sasse.senate.gov/public/index.cfm/press-releases?ID=48DE80D7-0321-4775-B427-C89AA0DCF264">did not explicitly endorse originalism</a> during her confirmation hearing.</p>
<p id="02BulE">But the Court’s Republican majority routinely ignores the text of federal laws and the Constitution, especially in voting rights cases. The <em>Shelby County</em> decision, for example, was rooted in what Chief Justice John Roberts called the “‘<a href="https://www.vox.com/22575435/voting-rights-supreme-court-john-roberts-shelby-county-constitution-brnovich-elena-kagan">fundamental principle of equal sovereignty</a>’ among the States.” But this principle is mentioned nowhere in the Constitution.</p>
<p id="pfq9At">Similarly, in <a href="https://www.supremecourt.gov/opinions/20pdf/19-1257_g204.pdf"><em>Brnovich v. DNC</em></a> (2021), the Court’s Republican majority invented a slew of new limits on the Voting Rights Act, such as a presumption that voting restrictions that were commonplace in 1982 are valid, despite the fact that these limits aren’t mentioned anywhere in the law’s text.</p>
<p id="efP89O">Indeed, many of the justices appear unwilling to follow the very same rules that they themselves have called upon the Court to follow. In early February, for example, the Supreme Court reinstated Alabama’s congressional maps in <a href="https://electionlawblog.org/wp-content/uploads/21A375-1.pdf"><em>Merrill v. Milligan</em></a>, despite a lower court’s determination that those maps were an <a href="https://www.vox.com/2022/2/8/22922774/supreme-court-merrill-milligan-alabama-brett-kavanaugh-racial-gerrymandering-voting-rights-act">impermissible racial gerrymander</a>.</p>
<p id="WiFVup">Though the full Court did not explain its decision in <em>Merrill</em>, Justice Brett Kavanaugh wrote a brief opinion, joined by Justice Samuel Alito, which suggested that the lower court erred because “federal courts ordinarily should not enjoin a state’s election laws in the period close to an election.” Kavanaugh wrote this opinion nearly nine months before the next general election, and three months before Alabama’s next primary.</p>
<p id="x87aNq">Nearly two months later, however, the Court <a href="https://www.vox.com/2022/3/23/22993107/supreme-court-wisconsin-race-gerrymander-voting-rights-act-legislature-elections-commission">tossed out Wisconsin’s legislative maps for state elections</a>, but neither Alito nor Kavanaugh provided any explanation of why it was suddenly acceptable to enjoin a state election law “in the period close to an election.” </p>
<p id="nYgGtI">Because the Court did not offer a full explanation of its actions, it’s hard to know why the Court decided to reach such inconsistent results. But one unifying thread tying together the Supreme Court’s decisions in both cases is that they both benefit white voters at the expense of Black voters. Another is that both decisions benefited Republicans at the expense of Democrats.</p>
<p id="ktZeLJ">So the Court’s voting rights jurisprudence, to once again quote Kagan, “<a href="https://www.supremecourt.gov/opinions/20pdf/19-1257_g204.pdf">mostly inhabits a law-free zone</a>.” The Court routinely ignores the text of the Constitution and of federal laws. It rushes out decisions that it barely explains — if it explains them at all. And it applies its own rules selectively in ways that seem designed to benefit the political party that controls the Court.</p>
<p id="mV846U">This is not a panel of justices who are likely to care very much what their newest colleague has to say about whether they are properly applying the law.</p>
<h3 id="DmNIlI">So what can Jackson do about this mess?</h3>
<p id="P507BH">Barring extraordinary events, Jackson is likely to spend her early years on the Supreme Court — and perhaps much of her career as a justice — writing dissents. The Court’s Republican members are unlikely to abandon their ideology simply because there’s a new voice in the justices’ conference room explaining to them why they are wrong.</p>
<p id="QNdG8K">But, assuming that the United States continues to hold competitive elections where either major party could prevail, dissents can still be a very powerful tool — not because they persuade the current crop of justices, but because they persuade future justices.</p>
<figure class="e-image">
<img alt=" " data-mask-text="false" src="https://cdn.vox-cdn.com/thumbor/YFd2LvdOHmPrHC0Rcjw-KapsuiA=/800x0/filters:no_upscale()/cdn.vox-cdn.com/uploads/chorus_asset/file/23374011/AP22080516165051.jpg">
<cite>Jose Luis Magana/AP</cite>
<figcaption>Supporters of the confirmation of Judge Ketanji Brown Jackson rally outside of the Supreme Court on March 21.</figcaption>
</figure>
<p id="KAhRbX">“I’ve given up on the current generation,” the late Justice Antonin Scalia once told a room of law students about why he wrote so many dissenting opinions marked by caustic wit and highbrow insult humor. “<a href="http://www.thehoya.com/justice-scalia-addresses-first-year-law-students/">But the kids in law school, I think there’s still a chance</a>,“ he added. “That’s who I write my dissents for.” Scalia believed that, by writing unforgettable dissents that would become required reading in law school classes, he could convert the next generation of lawyers and judges into conservative originalists.</p>
<p id="oBqVzk">Similarly, Justice Clarence Thomas, who spent many decades writing far-right dissents that were joined by no other justice, inspired a large cohort of Federalist Society members, many of whom now sit on the federal bench. Thomas’s <a href="https://www.vox.com/2022/3/29/22999755/supreme-court-clarence-thomas-voting-rights-democracy-elections-ginni">authoritarian vision</a> — one that is hostile to voting rights, to press freedom, and to left-leaning legislation generally — won few converts among the justices Thomas has served with. But Thomas’s vision is increasingly dominant, and may even be <em>the</em> <a href="https://archive.thinkprogress.org/clarence-thomas-most-important-legal-thinker-in-america-c12af3d08c98/">dominant approach</a> among conservative legal elites under the age of 50. </p>
<p id="E9akoP">When Judge Jackson becomes Justice Jackson, she will join two other liberal colleagues who’ve taken markedly different approaches from each other in their own dissents. </p>
<p id="JPM4d2">Justice Sonia Sotomayor is, in many ways, the mirror image of Thomas — often using her dissents to <a href="https://nymag.com/intelligencer/article/reintroducing-sonia-sotomayor.html">articulate a bold liberal vision</a> that has no shot of prevailing on this Supreme Court. Her dissent in <a href="https://www.supremecourt.gov/opinions/15pdf/14-1373_83i7.pdf"><em>Utah v. Strieff</em></a> (2016), for example, cited W. E. B. Du Bois, James Baldwin, and Ta-Nehisi Coates to argue against a legal regime where “people of color are disproportionate victims” of suspicionless stops by police.</p>
<p id="l1VHUd">Justice Kagan, by contrast, tends to focus more closely on the specific fight before her. When Chief Justice Roberts — a conservative who is somewhat more moderate than his other Republican colleagues — was still the median vote on the Supreme Court, Kagan spoke openly of her hopes of convincing Roberts to <a href="https://archive.thinkprogress.org/justice-kagan-warns-that-the-supreme-courts-legitimacy-is-in-danger-2de1192d5636/">decide big cases as narrowly as possible</a>. </p>
<p id="dQAjl7">Now that the other five Republicans no longer need Roberts’s vote to prevail, Kagan often tries to shame the majority by pointing out that their decisions are inconsistent with their own stated values. Hence Kagan’s dissent in the <em>Brnovich</em> case, which explained why <a href="https://www.supremecourt.gov/opinions/20pdf/19-1257_g204.pdf">the majority’s approach is an abomination against textualism</a>.</p>
<p id="UTDUHO">It remains to be seen how Jackson will approach her dissents, but her opinions as a lower court judge suggest one approach she could take. Jackson has a reputation for writing very long opinions, sometimes more than 100 pages long, at least in the <a href="https://scholar.google.com/scholar_case?case=13831942996525443357&hl=en&as_sdt=6&as_vis=1&oi=scholarr">most contentious</a> <a href="https://casetext.com/case/comm-on-judiciary-v-mcgahn">cases</a> she heard as a lower court judge.</p>
<p id="7PT8SW">As a liberal judge hoping not to be reversed by a conservative Supreme Court, this approach made sense. By trying to anticipate any argument that could be raised against her decisions, and by comprehensively laying out her case against that argument, Jackson did what she could to insulate her decisions from reversal. She couldn’t prevent her higher-ranking colleagues from behaving like ideologues, but she could make it clear why such an approach is not consistent with the law.</p>
<p id="8trZA9">Jackson could take a similar approach as a justice, writing long, comprehensive dissents that painstakingly take down the majority’s arguments. If she can churn these dissents out quickly, that could be an especially powerful approach in the Court’s shadow docket cases, where a lengthy dissent might shame a majority that barely takes the time to explain its decisions.</p>
<p id="WhnWr4">Realistically, Jackson — and anyone who supports the inclusive society that her confirmation symbolizes — faces a very difficult road ahead. In the worst-case scenario, the Court may lock in Republican rule for the foreseeable future. Even in a more optimistic scenario, left-leaning national candidates will face judicial headwinds in every election, and they will struggle to implement policies that the Court’s majority will accept.</p>
<p id="gqqdFu">But while Jackson cannot fix the current Supreme Court, she may be able to teach younger generations why a similar majority must never be allowed to gain control of the Court again.</p>
https://www.vox.com/23010014/supreme-court-ketanji-brown-jackson-racism-voting-rights-dissentsIan Millhiser2022-04-05T11:07:28-04:002022-04-05T11:07:28-04:00The next steps for Ketanji Brown Jackson’s nomination, briefly explained
<figure>
<img alt="" src="https://cdn.vox-cdn.com/thumbor/PNShYUUy4mdcyOataD8zX1W4jJU=/432x0:5679x3935/1310x983/cdn.vox-cdn.com/uploads/chorus_image/image/70667896/1387278506.0.jpeg" />
<figcaption>Supreme Court nominee Judge Ketanji Brown Jackson arrives for the third day of her confirmation hearing before the Senate Judiciary Committee in Washington, DC, on March 23. | Chip Somodevilla/Getty Images</figcaption>
</figure>
<p>Her nomination is now set for a floor vote this week. </p> <p id="LQ9cyc">The Senate is set to vote on <a href="https://www.vox.com/2022/2/25/22912842/supreme-court-nominee-ketanji-brown-jackson-biden">Ketanji Brown Jackson’s Supreme Court nomination</a> by the end of this week now that lawmakers have cleared it from the Judiciary Committee. </p>
<p id="xaX3wh">On Monday evening, the Senate voted 53-47 to discharge Jackson’s nomination from the Judiciary Committee after members of the panel deadlocked along partisan lines on it earlier in the day. </p>
<p id="OoR6tP">Three Republicans — Sens. Susan Collins (ME), Lisa Murkowski (AK) and Mitt Romney (UT) — joined the 50-person Democratic caucus to advance the nomination after all three senators announced their support for Jackson. </p>
<p id="scrn2s">This marks the first time since 1853 that the Senate has had to discharge a Supreme Court nominee from Committee. Typically, lawmakers have allowed nominees — including now-Justice Clarence Thomas and Robert Bork — to get a floor vote even if they aren’t favorably reported by the judiciary panel. (While Thomas was confirmed by the Senate, Bork’s nomination failed on the floor.)</p>
<p id="2Q6cCp">The maneuver underscores how polarizing these confirmation battles have become. While Democrats have lauded Jackson’s experience as a district judge, appeals court judge and public defender, Republicans have expressed qualms about her judicial philosophy as well as sentencing decisions she previously made on child pornography cases. (<a href="https://www.vox.com/2022/3/18/22983877/supreme-court-josh-hawley-ketanji-brown-jackson-child-pornography-sentencing">Experts have said these sentences</a> were well within the norm of what other district judges have imposed.) </p>
<p id="Ellh0T">Romney, Murkowski, and Collins’s support, however, ensures this final vote will be a bipartisan one. </p>
<p id="BINFvu">“My support rests on Judge Jackson’s qualifications, which no one questions,” Murkowski said in a Monday statement. “It also rests on my rejection of the corrosive politicization of the review process for Supreme Court nominees, which, on both sides of the aisle, is growing worse and more detached from reality by the year.”</p>
<h3 id="bLpwVk">Where Jackson’s nomination goes from here</h3>
<p id="EWITLB">There are a few more procedural steps before a vote on Jackson’s nomination. </p>
<p id="oM814Y">Later this week, the Senate will hold another vote ending debate on her nomination, also known as a cloture vote. After that vote occurs, lawmakers will have 30 hours to discuss their support and opposition of Jackson on the floor before they conduct a final vote, likely on Friday. </p>
<p id="N9thTq">Collins, Murkowski, and Romney may ultimately be the only Republicans to back Jackson. Sen. Lindsey Graham (R-SC) had previously voted for her Circuit Court nomination, but has already announced his opposition. A growing number of Republicans, including Sens. Thom Tillis (R-NC) and Roy Blunt (R-MO), have also done the same in recent days. </p>
<p id="jezLqu">“I won’t be supporting her but I’ll be joining others in understanding the importance of this moment,” Blunt said in an ABC News interview on Sunday. </p>
<p id="0zv3Z8">With backing from Democrats, and a handful of Republicans, Jackson has more than enough votes to get confirmed this week. She isn’t expected to take her seat on the Supreme Court until <a href="https://www.usatoday.com/story/news/politics/2022/04/05/ketanji-brown-jackson-wait-months-take-supreme-court-seat/7252011001/">later this year</a>, however. Justice Stephen Breyer has said he plans to step down at the end of the Supreme Court’s current term this summer, meaning Jackson won’t ascend to the high court until June or July. </p>
https://www.vox.com/2022/3/24/22994930/ketanji-brown-jackson-supreme-court-hearing-confirmationLi Zhou2022-03-23T20:30:00-04:002022-03-23T20:30:00-04:00What we actually learned from Ketanji Brown Jackson’s confirmation hearing
<figure>
<img alt="" src="https://cdn.vox-cdn.com/thumbor/kTdswkzXBpL_DW30vmmP86IkB_c=/0x0:7680x5760/1310x983/cdn.vox-cdn.com/uploads/chorus_image/image/70664274/1239443608.0.jpg" />
<figcaption>Supreme Court nominee Judge Ketanji Brown Jackson, during her Senate Judiciary Committee confirmation hearing on March 23, 2022. | Kent Nishimura/Los Angeles Times/Getty Images</figcaption>
</figure>
<p>The spectacle and substance, briefly explained. </p> <p id="vxtmMh"><a href="https://www.vox.com/2022/2/25/22912842/supreme-court-nominee-ketanji-brown-jackson-biden">Much of Supreme Court nominee Ketanji Brown Jackson’s</a> <a href="https://www.vox.com/2022/3/20/22934967/ketanji-brown-jackson-supreme-court-confirmation-hearing">confirmation hearing</a> was extremely predictable.</p>
<p id="j8Ank8">Because Jackson is widely expected to be confirmed, the hearing was often less a review of her record than a platform for lawmakers to send a message. Still, there were some revealing moments. </p>
<p id="MbPsYL">After three days of testimony, here’s what we learned. </p>
<h3 id="hAhfZ0">The messy realities of fairer sentencing </h3>
<p id="qQeTi1">The experiences Jackson will bring to the Supreme Court are unique: <a href="https://www.vox.com/22979925/ketanji-brown-jackson-public-defender">She’ll be the first public defender</a> to become a justice in more than three decades. She also served as vice chair on the federal Sentencing Commission.</p>
<p id="XKCP7I">But it was Jackson’s approach as a judge to sentencing that we heard about most in her confirmation hearing since <a href="https://www.vox.com/2022/3/18/22983877/supreme-court-josh-hawley-ketanji-brown-jackson-child-pornography-sentencing">Republicans’ most frequent line of attack</a> had to do with her rulings on child pornography cases. Republicans seized on those rulings to accuse her of being too lenient and to paint her as soft on crime.</p>
<p id="j1IP8u">“Nothing could be further from the truth,” Jackson said on Tuesday in response to a question from Sen. Dick Durbin (D-IL). “I impose a significant sentence and then all of the additional restraints that are available in the law. These people are looking at 20, 30, 40 years of supervision. They can’t use their computers in a normal way for decades. I am imposing all of those constraints because I understand how significant, how damaging, how horrible this crime is.” </p>
<p id="wcqFnt">The charge is an unfounded one and a distortion of Jackson’s record, <a href="https://www.vox.com/2022/3/18/22983877/supreme-court-josh-hawley-ketanji-brown-jackson-child-pornography-sentencing">Vox’s Ian Millhiser and observers at other outlets noted before the hearings</a>. While Republicans have criticized Jackson for sentencing child pornography offenders below federal sentencing guidelines, a bipartisan group of judges, policymakers, and even prosecutors have stated that these guidelines are too harsh. When Jackson’s decisions are compared to that of a bipartisan slate of district judges, her record is typically in line with them. </p>
<p id="2O7SH3">“If and when we properly contextualize Judge Jackson’s sentencing record in federal child porn cases, it looks pretty mainstream,” <a href="https://sentencing.typepad.com/sentencing_law_and_policy/2022/03/contextualizing-judge-jacksons-mainstream-sentencing-record-in-federal-child-porn-cases.html">wrote Doug Berman,</a> a sentencing law expert at Ohio State University.</p>
<p id="itvUH3">Jackson explained over and over again that Congress’s statute about child sexual abuse material cases directs judges to weigh different characteristics of the offense in addition to the federal sentencing guidelines and to impose a penalty “sufficient but not greater than necessary to promote the purposes of punishment.” Jackson also repeatedly explained that she followed the loose parameters for sentencing, parameters that lead to inconsistent sentences in these cases. </p>
<p id="RDeROs">Jackson referenced her time as a public defender in the hearing as well, stressing how criminal defendants’ access to representation “makes our system the best in the world.”</p>
<p id="Yr2xMi">Republican Senate Judiciary Committee members, including Ted Cruz (R-TX) and Mike Lee (R-UT), have supported sentencing reform efforts like the First Step Act, which enabled thousands of federal inmates to pursue shorter sentences. But they were clamoring for the harshest possible approach for people in child sexual abuse material cases during their turn at the mic, even in the face of persistent explanations from a woman who spent much of her career attempting to actually mete out fair punishments. </p>
<h3 id="93QOc3">Jackson’s twist on originalism </h3>
<p id="8oZofu">Jackson, under questioning, walked through how she would weigh Supreme Court precedents, including those on abortion rights. Her rhetoric was frequently in line with what her predecessors in these hearings said previously about settled precedents.</p>
<p id="lu3VPe">“I do agree with both Justice [Brett] Kavanaugh and Justice [Amy Coney] Barrett on this issue. <em>Roe</em> and <em>Casey</em> are the settled law of the Supreme Court concerning the right to terminate a woman’s pregnancy,” Jackson said, adding that she believed precedents were “entitled to respect.”</p>
<p id="08La94">Of course, unsaid was that their perspectives on these precedents could lead to different interpretations and outcomes. </p>
<p id="215hik"><a href="https://www.vox.com/2021/11/29/22796446/supreme-court-roe-wade-abortion-dobbs-jackson-womens-health-organization-overrule"><em>Dobbs vs. Jackson Women’s Health Organization</em></a> is a pending case before the Supreme Court, for example. It centers on the constitutionality of a 2018 Mississippi law that bars most abortions after 15 weeks. The decision on this case could effectively weaken <em>Roe </em>so states have more power over determining the right to an abortion. While Kavanaugh and Jackson agree that <em>Roe</em> is a precedent, it’s likely that they’d rule differently on <em>Dobbs. </em></p>
<p id="usc01G">Jackson explained, too, that overruling a past precedent would depend on several factors, including whether the ruling was “egregiously wrong,” whether new facts had come to light, and the extent to which people relied on the precedent. </p>
<p id="1ITdJp">Jackson repeatedly declined Republicans’ pressure to offer a judicial philosophy, as they attempted to illustrate she doesn’t subscribe to the “originalist” approach they prefer. Recent nominees Amy Coney Barrett and Brett Kavanaugh were enthusiastic originalists, meaning they say, they interpret the Constitution as it was written and as how the founders intended. Jackson instead said she had a three-part judicial methodology, which includes eliminating “preconceived notions,” weighing the inputs in a case, and applying the law to it.</p>
<p id="xqcs8B">“I am acutely aware that as a judge in our system I have limited power and I am trying in every case to stay in my lane,” Jackson noted, stressing that she tried to operate from a “position of neutrality.”</p>
<p id="U9M6yM">While originalism is favored by Republicans, a more progressive framework is known as <a href="https://www.cnn.com/politics/live-news/ketanji-brown-jackson-hearing-3-22-22/h_33157e828bea6903bb3c2bfb26fb357b">the “living Constitution” approach</a>, which means the interpretation of the document changes over time. </p>
<p id="kjokSO">Jackson seemed to indicate that she didn’t align with this philosophy, either, offering testimony that emphasized viewpoints closer to originalism. “I do not believe that there is a living Constitution in the sense that it’s changing and it’s infused with my own policy perspective or the policy perspective of the day,” she said in response to questions from Sen. Chuck Grassley (R-IA) on Tuesday. “Instead, the Supreme Court has made clear that when you’re interpreting the Constitution you’re looking at the text at the time of the founding.”</p>
<p id="CLgb8o">Jackson’s statements have heartened some on the right, though <a href="https://slate.com/news-and-politics/2022/03/ketanji-brown-jackson-originalism-textualism-conservative.html">Slate’s Mark Joseph Stern</a> notes that there is enough flexibility in the application of originalism for judges to arrive at more progressive rulings as well. </p>
<h3 id="MS5M7k">Republicans’ used their big political platform to focus on culture war issues </h3>
<p id="qu74LK">Some Republicans, like Ben Sasse (NE), Thom Tillis (NC), and Grassley (IA) were respectful — sometimes even genial — even as they pushed for tough answers and gave no indication they’ll actually support Jackson’s nomination.</p>
<p id="6VWZ77">More notable though, were the Republicans, <a href="https://www.cnn.com/politics/live-news/ketanji-brown-jackson-hearing-3-22-22/h_33157e828bea6903bb3c2bfb26fb357b">including the ones with 2024 ambitions</a>, who took advantage of all the media attention focused on the hearings for political messaging. Chiefly, they sought to tie Jackson’s record to culture wars, giving themselves fodder to rile up voters or prove their own conservative bonafides.</p>
<p id="i1IEVM">There was the focus on Jackson’s sentencing in child sexual about material cases as part of an effort to paint her — and Democrats — as soft on crime. Sometimes the message strayed far from Jackson herself. “I think it’s safe to say there’s a surge in crime, especially violent crime and murder,” Cotton said in the hearings. “Does the United States need more police or fewer police?”</p>
<p id="GZJ9LP"><a href="https://www.vox.com/2022/3/18/22983877/supreme-court-josh-hawley-ketanji-brown-jackson-child-pornography-sentencing">As Vox’s Ian Millhiser explained,</a> the attacks on perceived leniency toward child pornography are also reminiscent of conspiracy theories like QAnon that suggest that liberals are part of a ring of pedophiles. </p>
<p id="SLNP2F">Republicans also brought up other culture war issues, including critical race theory. Cruz attacked the curriculum at the school where Jackson serves on the board as promoting the theory. </p>
<p id="1F0xzR">“It doesn’t come up in my work as a judge. It’s never something that I’ve studied or relied on. And it wouldn’t be something that I would rely on if I were on the Supreme Court,” Jackson responded when asked about critical race theory. Jackson’s defense of Guantanamo Bay detainees and the issue of trans athletes competing in college sports were also raised. </p>
<p id="Ibge1b">It’s not unexpected that a judicial nominee would face questions about hot-button cultural issues, but this may be the most visible moment in Congress all year. So the issues that were the most revealing were the ones Republicans chose to highlight — <a href="https://www.msnbc.com/opinion/msnbc-opinion/ketanji-brown-jackson-hearing-gop-fixates-critical-race-theory-n1292719">and the racist dog whistles some of them used in doing so</a>.</p>
<h3 id="gsRlWO">How Jackson handled the scrutiny, and the historic moment</h3>
<p id="nywGf0">All nominees face a challenge in these hearings: They must gird for long, grinding days and senators with an agenda in which they will serve as a prop. Jackson faced the extra layer of pressure that comes with being a historic pick, as she stands to become the first Black woman ever to be a Supreme Court justice. </p>
<p id="JSbbCm">She was mostly unflappable, though glimmers of frustration were evident in the face of some of the more demeaning and obtuse lines of questioning. </p>
<p id="CDgtbN">“This is just a master class in how Black women have to be patient, have to be fully composed in responding to things that are meant for destruction,” Georgetown University women’s and gender studies professor Nadia Brown <a href="https://www.latimes.com/politics/story/2022-03-23/black-women-ketanji-brown-jackson-hearing">told the Los Angeles Times</a>.</p>
<div id="tM3XnQ">
<blockquote class="twitter-tweet">
<p lang="en" dir="ltr">Despite the tendentious and misleading questions from Cruz, Jackson couldn't possibly rage and cry the way now-Justice Kavanaugh did in his confirmation hearing without destroying her career. Even an eyebrow raise could be held against her. <a href="https://t.co/e7KO00V201">https://t.co/e7KO00V201</a></p>— Irin Carmon (@irin) <a href="https://twitter.com/irin/status/1506350004553793543?ref_src=twsrc%5Etfw">March 22, 2022</a>
</blockquote>
<script async="" src="https://platform.twitter.com/widgets.js" charset="utf-8"></script>
</div>
<div id="1ONE25">
<blockquote class="twitter-tweet">
<p lang="en" dir="ltr">I’m glad Jackson is, gracefully, showing a bit of her understandable frustration. She certainly does not have the privilege to behave as Kavanaugh did. But she should be allowed to be a human. Black women should not always be expected to endure disrespect with a smile.</p>— Kimberly Atkins Stohr (@KimberlyEAtkins) <a href="https://twitter.com/KimberlyEAtkins/status/1506663223965196295?ref_src=twsrc%5Etfw">March 23, 2022</a>
</blockquote>
<script async="" src="https://platform.twitter.com/widgets.js" charset="utf-8"></script>
</div>
<p id="MU5WeJ">So far, there have been 115 Supreme Court justices, just five of whom have been women and two of whom have been Black men. </p>
<p id="f3fOOv">Throughout the hearing, Jackson spoke extensively about the importance of having a more diverse federal judiciary, noting how a Supreme Court that looks like America would help to build public trust. </p>
<p id="wi6mpU">“We have a diverse society in the United States … and when people see that the judicial branch is comprised of a variety of people who have taken the oath to protect the Constitution, it lends confidence that the rulings the Court is handing down are fair and just,” Jackson said. “I think it’s extremely meaningful. One of the things that having diverse members of the Court does is it provides the opportunity of having role models.”</p>
<p id="Djum0N">Sen. Cory Booker (D-NJ) — in remarks that made Jackson tear up — also emphasized the discrimination Black women have had to endure in different fields while stressing her achievements. </p>
<p id="aGBPrr">“Any one of us senators can yell as loud as we want that Venus can’t serve, that Beyoncé can’t sing, that astronaut Mae Jemison didn’t go that high,” Booker said. “As it says in the Bible, ‘let the work I’ve done speak for me.’ Well, you have spoken.”</p>
<p id="4Ju5K9"></p>
<p id="0ns8Ys"></p>
https://www.vox.com/2022/3/23/22993779/ketanji-brown-jackson-confirmation-hearingLi Zhou2022-03-22T21:03:23-04:002022-03-22T21:03:23-04:00The GOP’s attacks on Ketanji Brown Jackson are nasty even by Republican standards
<figure>
<img alt="Senate Holds Supreme Court Confirmation Hearings For Ketanji Brown Jackson" src="https://cdn.vox-cdn.com/thumbor/anoriitbfGHM7i8Ghw6rUPOUnto=/0x0:3328x2496/1310x983/cdn.vox-cdn.com/uploads/chorus_image/image/70659623/1387155720.0.jpg" />
<figcaption>Supreme Court nominee Judge Ketanji Brown Jackson testifies during her confirmation hearing before the Senate Judiciary Committee on Capitol Hill on March 22, 2022. | Win McNamee/Getty Images</figcaption>
</figure>
<p>Republicans turned the hearing into a blizzard of misleading attacks, many of which seem designed to appeal to QAnon supporters.</p> <p id="XlpDTL">One day after Republican senators promised they wouldn’t levy personal attacks against <a href="https://www.vox.com/2022/2/25/22912842/supreme-court-nominee-ketanji-brown-jackson-biden">Supreme Court nominee Ketanji Brown Jackson</a>, several of them generated a storm of misleading — and often offensive — attacks against her.</p>
<p id="nbjmcH">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 <a href="https://www.vox.com/2018/9/22/17886814/brett-kavanaugh-christine-blasey-ford-deborah-ramirez">sexually assaulting a woman</a> while he was in high school.</p>
<p id="j22Qn3">Multiple Republican senators promised not to levy similarly “personal attacks” against Jackson. “<a href="https://www.vox.com/22990018/ketanji-brown-jackson-confirmation-hearing-brett-kavanaugh">No Republican senator is going to unleash an attack on your character</a> when the hearing is almost over,” Sen. Lindsey Graham (R-SC) promised Jackson.</p>
<p id="A9P3Pm">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.</p>
<p id="XBtl5W">Before those misleading attacks kicked off in real force, Graham <a href="https://www.thedailybeast.com/lindsey-graham-melts-down-and-storms-off-during-ketanji-brown-jackson-hearing?ref=scroll">stormed out of the hearing</a> 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.</p>
<p id="c3RyoN">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 <a href="https://www.jta.org/2022/03/22/politics/ketanji-brown-jackson-brings-up-a-black-jewish-civil-rights-alliance-in-confirmation-hearing">provide a racially integrated education</a> at a time when Washington, DC’s public schools were segregated.</p>
<p id="NS824Y">Cruz attacked the school because, he said, it <a href="https://www.nytimes.com/2022/03/22/us/politics/cruz-jackson-antiracist-baby.html">teaches books</a> 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 <a href="https://www.vox.com/22443822/critical-race-theory-controversy">critical race theory</a>, 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.</p>
<p id="7t4KrR">The Republican Party tweeted a similar attack on Jackson shortly before Cruz brought up critical race theory at the hearing.</p>
<div id="Z4ymtf">
<blockquote class="twitter-tweet">
<p lang="und" dir="ltr"><a href="https://t.co/wYFmFNUepU">https://t.co/wYFmFNUepU</a> <a href="https://t.co/NGa6SgTxdY">pic.twitter.com/NGa6SgTxdY</a></p>— GOP (@GOP) <a href="https://twitter.com/GOP/status/1506282786843410432?ref_src=twsrc%5Etfw">March 22, 2022</a>
</blockquote>
<script async="" src="https://platform.twitter.com/widgets.js" charset="utf-8"></script>
</div>
<p id="B1ueEi">The most inflammatory — and, sadly, the <a href="https://www.vox.com/2022/3/18/22983877/supreme-court-josh-hawley-ketanji-brown-jackson-child-pornography-sentencing">most predictable</a> — 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.</p>
<h3 id="cwecXK">Hawley’s dishonest attack on Jackson, briefly explained</h3>
<p id="vySLNI">The gravamen of <a href="https://www.vox.com/2022/3/18/22983877/supreme-court-josh-hawley-ketanji-brown-jackson-child-pornography-sentencing">Hawley’s attack</a> 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.</p>
<p id="Vu1Zu8">The Federal Sentencing Guidelines are an advisory manual that recommend a sentencing range for various offenses to federal judges. But the <a href="https://www.vox.com/2022/3/18/22983877/supreme-court-josh-hawley-ketanji-brown-jackson-child-pornography-sentencing">consensus view among judges and sentencing policymakers</a> 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.</p>
<p id="t10tad">According to a 2021 report by the US Sentencing Commission, “the majority (<a href="https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2021/20210629_Non-Production-CP.pdf">59.0%</a>) 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 <a href="https://sentencing.typepad.com/sentencing_law_and_policy/2022/03/contextualizing-judge-jacksons-mainstream-sentencing-record-in-federal-child-porn-cases.html">more than 50 months lower</a> than the minimum sentence recommended by the guidelines. Indeed, in a majority of the child pornography cases heard by Judge Jackson, <a href="https://sentencing.typepad.com/sentencing_law_and_policy/2022/03/contextualizing-judge-jacksons-mainstream-sentencing-record-in-federal-child-porn-cases.html">the prosecution recommended a below-guidelines sentence</a>.</p>
<p id="uqSUru">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 <a href="https://www.washingtonpost.com/politics/2022/03/19/sen-hawleys-misleading-attack-judge-jacksons-sentencing-child-porn-offenders/">at or above the probation office’s recommendations</a> in five of the seven cases identified by Hawley.</p>
<p id="gChDxr">Numerous independent fact-checkers examined this attack on Jackson and determined that it is bogus. The New York Times said <a href="https://www.nytimes.com/2022/03/21/us/politics/judge-jackson-child-sexual-abuse-fact-check.html">Republicans are “distorting” Jackson’s record</a>. The Associated Press said that Republicans “<a href="https://www.nbcwashington.com/news/politics/fact-check-republicans-twist-ketanji-brown-jacksons-judicial-record/3005071/">twist Ketanji Brown Jackson’s judicial record</a>.” ABCNews warned of “<a href="https://abcnews.go.com/Politics/fact-check-judge-ketanji-brown-jackson-child-porn/story?id=83565833">a flurry of misleading allegations by Republican Sen. Josh Hawley</a>.” Even the conservative National Review described the allegations against Jackson as a “smear” that “<a href="https://www.nationalreview.com/2022/03/senator-hawleys-disingenuous-attack-against-judge-jacksons-record-on-child-pornography/">appears meritless to the point of demagoguery</a>.”</p>
<p id="PSOjut">Cruz and Hawley paid particular attention to one case — that of an <a href="https://www.vox.com/2022/3/18/22983877/supreme-court-josh-hawley-ketanji-brown-jackson-child-pornography-sentencing">18-year-old Wesley Hawkins</a>. 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 <a href="https://storage.courtlistener.com/recap/gov.uscourts.dcd.161652/gov.uscourts.dcd.161652.20.0.pdf">no indication that he is sexually interested in prepubescent children</a>,” 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.”</p>
<p id="KCpBti">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.</p>
<p id="1gAT2e">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 “<a href="https://www.law.cornell.edu/uscode/text/18/3553">sufficient, but not greater than necessary</a>” 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.</p>
<p id="c652xO">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 <a href="https://twitter.com/burgessev/status/1506021608820920321">questioning Hawley’s credibility</a> — the stakes here are very high. </p>
<p id="LX5j4g">For one thing, at least according to polling data, a <a href="https://twitter.com/donmoyn/status/1505544424583012360">simply astonishing percentage</a> 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, <a href="https://www.nytimes.com/2021/05/27/us/politics/qanon-republicans-trump.html">15 percent of Americans said</a> they believed Satan-worshiping pedophiles ran the country. </p>
<div id="DhMwiV">
<blockquote class="twitter-tweet" data-conversation="none">
<p lang="en" dir="ltr">Perhaps progressives or media don't see the QAnon signaling, or assume no-one buys it. <br>That is a mistake.<br>About half of Republicans believe Democratic leaders are engaged in child sex trafficking! Thats a huge constituency! 2/ <a href="https://t.co/Yd1fNp47AZ">https://t.co/Yd1fNp47AZ</a> <a href="https://t.co/yXmtYM5BbS">pic.twitter.com/yXmtYM5BbS</a></p>— Don Moynihan (@donmoyn) <a href="https://twitter.com/donmoyn/status/1505544424583012360?ref_src=twsrc%5Etfw">March 20, 2022</a>
</blockquote>
<script async="" src="https://platform.twitter.com/widgets.js" charset="utf-8"></script>
</div>
<p id="NLli9W">The false belief that top Democrats are in league with child abusers is the core of conspiracy theories such as <a href="https://twitter.com/HawleyMO/status/1504221927665250305">QAnon</a> or <a href="https://www.vox.com/policy-and-politics/2016/12/5/13842258/pizzagate-comet-ping-pong-fake-news">Pizzagate</a>. These conspiracy theories have <a href="https://www.vox.com/2022/3/18/22983877/supreme-court-josh-hawley-ketanji-brown-jackson-child-pornography-sentencing">inspired violence in the past</a>. 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.</p>
<p id="nWEb0c">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.</p>
<p id="CYQ6tF">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.</p>
<p id="aON32V">If this works, things are likely to get much uglier very fast. </p>
<p id="EIxWbc"><strong>Correction, March 23, 1 pm ET:</strong> A previous version of this article misstated the state Marsha Blackburn represents. It is Tennessee.</p>
https://www.vox.com/2022/3/22/22991834/supreme-court-ketanji-brown-jackson-republican-josh-hawley-ted-cruz-child-pornographyIan Millhiser2022-03-21T10:10:00-04:002022-03-21T10:10:00-04:00Why Ketanji Brown Jackson’s time as a public defender matters
<figure>
<img alt="" src="https://cdn.vox-cdn.com/thumbor/ae6Ott20d_EaiT3nm2rMHVLJMkk=/267x0:4891x3468/1310x983/cdn.vox-cdn.com/uploads/chorus_image/image/70651669/AP22056734945953.0.jpg" />
<figcaption>Judge Ketanji Brown Jackson at the US Court of Appeals for the DC Circuit on February 18. | Jacquelyn Martin/AP</figcaption>
</figure>
<p>A look at the Supreme Court nominee’s record defending indigent clients. </p> <p id="x0RndC"><em><strong>Editor’s note, June 30, 12:15 pm: </strong></em><em>Ketanji Brown Jackson was sworn into office as an associate justice of the United States Supreme Court on Thursday, June 30, after Justice Stephen Breyer retired. The following story text was last updated after her Senate confirmation vote in April.</em></p>
<p id="9er8IS">The last two times that Judge Ketanji Brown Jackson went through the Senate confirmation process, one part of her résumé drew particular scrutiny from Republicans: her work as a federal public defender.</p>
<p id="N6vsmx">“I have questions about your views on the rights of detainees, and that in turn causes some concern about how you will handle terrorism cases that may come before you if you are confirmed,” Sen. Charles Grassley (R-IA) <a href="https://www.govinfo.gov/content/pkg/CHRG-112shrg93596/html/CHRG-112shrg93596.htm">said at a hearing</a> in 2012, when Jackson, now President Joe Biden’s nominee to replace Justice Stephen Breyer on the Supreme Court, was confirmed as a federal district court judge.</p>
<p id="h8aaVN">“Have you ever represented a terrorist at Guantánamo Bay?” asked Sen. Tom Cotton (R-AR) <a href="https://www.c-span.org/video/?511313-1/confirmation-hearing-judicial-nominees">during her confirmation hearing</a> for the DC Circuit Court of Appeals last year. Would Jackson’s work “result in more violent criminals — including gun criminals — being put back on the streets?” Sen. Ben Sasse (R-NE) asked in a <a href="https://www.judiciary.senate.gov/imo/media/doc/Brown%20Jackson%20Responses1.pdf">written follow-up questionnaire</a>. </p>
<p id="9hWKtf">As Supreme Court confirmation hearings begin Monday, Jackson’s background could come under attack again. But that very work is one reason<strong> </strong>putting Jackson on the bench would be historic.</p>
<p id="HAmoCF">During Jackson’s time as a federal public defender, a job she held from 2005 to 2007, she represented some of the country’s most vulnerable people, which has given her a perspective that would be unique on the current Supreme Court. And because people of color are disproportionately arrested, prosecuted, and locked up, her work is also inextricably tied up with the fight for racial justice. </p>
<p id="1ZeKQl">The pipeline from being a corporate attorney or prosecutor to judge is robust. By contrast, the public-defender-to-judge pipeline barely exists.<strong> </strong></p>
<p id="4FS7aN">The Center for American Progress <a href="https://www.americanprogress.org/article/startling-lack-professional-diversity-among-federal-judges/">reported</a> in 2020 that only about 1 percent of all federal appellate judges spent the majority of their careers as public defenders or legal aid attorneys. And only about <a href="https://scholar.harvard.edu/files/msen/files/harris-sen-public-defenders.pdf">8 percent</a> of all federal judges are former public defenders, experience that researchers say can make a difference in sentencing. A <a href="https://www.washingtonpost.com/outlook/2022/03/17/jackson-public-defender-courts/">recent study</a>, examining millions of sentences handed down by district court judges, found that former public defenders were somewhat less likely to sentence someone to incarceration.<strong> </strong>(Jackson <a href="https://www.vox.com/2022/2/25/22912842/supreme-court-nominee-ketanji-brown-jackson-biden">has not spent most of her career</a> as a public defender, but she continued to advocate for criminal defendants as a private corporate attorney and at the federal Sentencing Commission, which reduced sentences in guidelines for drug offenses during her tenure as vice chair.)</p>
<p id="m59kNs">Jackson defended Khi Ali Gul, a man whom the US government considered an “enemy combatant,” wading into a new area of the law when <a href="https://www.scribd.com/document/556639705/Gul-v-Bush-amended-habeas-petition">she advocated</a> for his right to challenge his imprisonment at Guantánamo Bay, Cuba. She filed briefs and assisted in cases on behalf of an indigent parent in a child custody proceeding and a pregnant juvenile who was a victim of human trafficking.</p>
<p id="IJ0OI6">“100% percent of my time was devoted to the disadvantaged,” Jackson <a href="https://www.judiciary.senate.gov/imo/media/doc/Jackson%20Public%20SJQ.pdf">wrote</a> of her time as a public defender. </p>
<h3 id="HVtHzL">Jackson would be the first public defender on the Court in a generation</h3>
<p id="cuMfwl">If confirmed, Jackson would be the first justice in more than 30 years with significant experience representing criminal defendants. The last was Justice Thurgood Marshall, the first Black Supreme Court justice, who left the court in 1991 after serving for 24 years.</p>
<p id="zphb4k">The parallel to Marshall is noteworthy, said<strong> </strong>April Frazier Camara, the president and CEO of the National Legal Aid & Defender Association and a co-founder of the Black Public Defender Association. The work Marshall did before he joined the court had a lasting influence on his perspective and decisions. </p>
<p id="xAevP7">Before he joined the Court, Marshall “represented indigent people who were oftentimes accused of capital offenses in the South — some very socially unpopular clients like Black men who had death penalty cases after being accused of raping white women,” she said, noting that the charges were often inflated or unsupported. </p>
<p id="0Fe0WW">In 1941, Marshall defended young illiterate Black sharecropper W.D. Lyons, who <a href="https://www.themarshallproject.org/2014/11/20/the-awakening-of-thurgood-marshall">was falsely accused</a> of three counts of murder. Police beat him and coerced his confession. </p>
<p id="Pz1pMb">Though Marshall lost the case, it galvanized him to take on the most obscure cases in an effort to extend equal protection of the law to all people regardless of their race. And even after arguing <em>Brown v. Board of Education</em> in 1954 before the Supreme Court, in which he invalidated segregation in public schools under the 14th Amendment — one of the Court’s landmark decisions — Marshall was met with resistance at his 1967 confirmation hearing from Southern senators who questioned his record. </p>
<p id="sERTRQ">North Carolina Sen. Sam Ervin, for example, <a href="https://li.proquest.com/elhpdf/histcontext/HRG-1967-SJS-0014.pdf">expressed concern</a> that “the easiest way to destroy the Constitution” was to have it “manned by judges who will not exercise judicial self-restraint.” </p>
<p id="YMOVWI">Nevertheless, Marshall was confirmed; by the time he retired, he had become known as “the Great Dissenter” on a court that had grown increasingly conservative. </p>
<div class="c-wide-block"> <figure class="e-image">
<img alt=" " data-mask-text="false" src="https://cdn.vox-cdn.com/thumbor/rA83TCdPYpONSjset2jkSlzP-kc=/800x0/filters:no_upscale()/cdn.vox-cdn.com/uploads/chorus_asset/file/23322102/GettyImages_515213214.jpg">
<cite>Bettmann Archive</cite>
<figcaption>Thurgood Marshall, left, represents Walter Lee Irvin, center, in court in Ocala, Florida, in 1952. Irvin was one of four Black men known as the Groveland Four, who were charged with kidnapping and raping a white woman in 1949. All four men were found guilty, but were granted a posthumous pardon in 2019 by Florida Gov. Ron DeSantis, and were fully exonerated in November 2021.</figcaption>
</figure>
</div>
<p id="2b4Z6v">Marshall worked as a public defender well before <em>Gideon v. Wainwright</em> established in 1963 that guarantee of counsel for criminal defendants is a fundamental right. </p>
<p id="AG6Yl2">“Back then, the structured public defender system that we have now wasn’t in place,” Camara said. “He was really filling a gap.” </p>
<p id="lJT8d4">By the time Jackson became a public defender, the system had more of a structure — a job in the federal defender’s office was competitive — but a stigma in representing criminal defendants remained. Still,<strong> </strong>the value of seeing the justice system from the perspective of defendants has not diminished. “For Judge Jackson to walk in those shoes and actually serve a person that’s accused of an offense, there’s an intimate understanding of how important it is that our legal system, specifically judges, ensure that every person’s rights are fully recognized,” Camara said. </p>
<h3 id="oqHJ5i">Why public defenders matter, including on the Supreme Court</h3>
<p id="bBIDtZ">When Jackson responded to Sasse’s questions last year, she likened her intent as a public defender to that of the framers of the Constitution: “In order to guarantee liberty and justice for all, the government has to provide due process to the individuals it accuses of criminal behavior, including the rights to ... competent legal counsel.”</p>
<p id="hSc84c">Public defenders, who are appointed by the courts<strong> </strong>to represent people who cannot afford a lawyer, uphold one of the most basic rights afforded by the Constitution: that people put on trial for a crime will have the assistance of counsel to defend themselves. They do not have the power to choose the indigent criminal defendants whom they represent, and they<strong> </strong>must take any and every case given to them.</p>
<p id="2YVmqT">“One of the unique things about the public defender role is it’s really one of the only jobs that’s guaranteed by the Constitution,” said Vida Johnson, a professor of law at Georgetown University and former public defender at the federal public defender’s office. “The <a href="https://www.uscourts.gov/services-forms/defender-services">Sixth Amendment provides</a> that people who can’t afford a lawyer will be given one. Public defenders play this enormously important role in the legal system, and without it, the system couldn’t function.”</p>
<p id="fFsRUw">Jackson worked for DC’s Office of the Federal Public Defender from 2005 to 2007, when she left for the corporate law firm Morrison & Foerster. </p>
<p id="W8QMvN">A.J. Kramer, the current federal public defender and the federal public defender who assigned Jackson’s cases, said she had no choice in who she represented. But when Jackson applied for the role, she specifically requested to work on appeals — seeking relief for people who had already been convicted in federal court. </p>
<p id="Q2SRj7">“I think she believed it was her strength, where she could best use her writing abilities and her ability to analyze,” Kramer said. Like any other public defender, her responsibility was to look at the record of the case and decide what issues needed to be raised<strong> </strong>before a higher court. She ultimately<strong> </strong>argued before the appeals courts about 10 times. </p>
<p id="54TTZw">“Being a public defender and working from within the system gives someone a full grasp of how the criminal justice system works because you get to see the people involved on both sides, from the prosecutor’s perspective and the client’s,” Kramer said. “You really get to see that clients are human beings.”</p>
<div class="c-wide-block"> <figure class="e-image">
<img alt=" " data-mask-text="false" src="https://cdn.vox-cdn.com/thumbor/PE-qC46XsEeZjSl8fmWAoDvMBSM=/800x0/filters:no_upscale()/cdn.vox-cdn.com/uploads/chorus_asset/file/23326402/GettyImages_1385975026.jpg">
<cite>Chip Somodevilla/Getty Images</cite>
<figcaption>Ketanji Brown Jackson arrives at the offices of Sen. Deb Fischer before a meeting in the Russell Senate Office Building on Capitol Hill on March 17.</figcaption>
</figure>
</div>
<p id="LpgNL5">Former defense attorneys have direct experience with the perspectives of people arrested and incarcerated, a <a href="https://abcnews.go.com/US/abc-news-analysis-police-arrests-nationwide-reveals-stark/story?id=71188546">population with a</a> <a href="https://www.washingtonpost.com/graphics/2020/opinions/systemic-racism-police-evidence-criminal-justice-system/">disproportionate number of people of color</a>. Public defenders also <a href="https://www.uscourts.gov/services-forms/defender-services">represent the majority</a> of people who come before the court in criminal cases. </p>
<p id="eFQiQL">“In addition to having this perspective about what it means to be a person accused of a crime, what it means to be a poor person accused, and what it means to be a poor person of color accused of a crime, Jackson also brings the perspective of what prosecutors do and the role that prosecutors play in our criminal legal system,” Johnson said. </p>
<p id="Q4uV6r">This is key since federal prosecutors are known for using harsh tactics in federal court and have lobbied Congress to get high statutory maximum sentences and mandatory minimums for a number of crimes to have leverage over criminal defendants, Johnson said, adding, “Judge Jackson will really have this very interesting perspective that no other justice would have.”</p>
<p id="UaURZY">Plus, there’s the added layer of Jackson’s gender and racial identity in the context of her public defender experience. </p>
<p id="AgFbaY">“As a Black public defender, this work is professional, but it is also personal. It’s hard for you to find a Black public defender or maybe even a Black attorney who does not have a loved one who is directly impacted specifically by the criminal legal system,” Camara said. </p>
<p id="QjDXI7">While Jackson served as a federal public defender, her uncle, Thomas Brown Jr., was <a href="https://www.washingtonpost.com/politics/courts_law/ketanji-brown-jackson-uncle-prison/2022/01/30/669c5f68-8116-11ec-bf02-f9e24ccef149_story.html">serving a life sentence</a> in Florida for a nonviolent drug offense, which President Barack Obama later commuted. Two of her other uncles served in law enforcement — one worked as a sex crimes detective in Miami-Dade County and the other became chief of the Miami Police Department. Her brother served as a police officer in Baltimore, including time in an undercover drug sting unit; he also joined the National Guard and led two battalions during tours of duty in Iraq and the Sinai Peninsula.</p>
<p id="lQMn8F">“We uniquely understand what it means to work within those systems every day with a law degree,” Camara said. “But then we return home to communities where we see the very real experience of what mass incarceration means for our communities. Public defenders, Black public defenders, Black woman public defenders, are uniquely qualified to be fair and just.” </p>
<h3 id="xTx8PM">Jackson’s public defender caseload</h3>
<p id="EgS86W">Legal experts who spoke to Vox argue that there’s no real reason to inspect the cases that Jackson worked on as a public defender; after all, like other public defenders, she was assigned her cases and did not choose her clients. </p>
<p id="QVLdWc">“The views that were expressed were the views of my clients. I represented them in that capacity and the briefs did not necessarily represent my personal views,” Jackson said in a 2012 confirmation hearing.</p>
<div class="c-wide-block"> <figure class="e-image">
<img alt=" " data-mask-text="false" src="https://cdn.vox-cdn.com/thumbor/bqSLDkm_-49XXhsBpZb2d11kiGo=/800x0/filters:no_upscale()/cdn.vox-cdn.com/uploads/chorus_asset/file/23322176/AP22071021090331.jpg">
<cite>Evan Vucci/AP</cite>
<figcaption>Supreme Court nominee Ketanji Brown Jackson meets with Senate Judiciary Committee ranking member Chuck Grassley on Capitol Hill on March 2.</figcaption>
</figure>
</div>
<p id="sWfica">But<strong> </strong>even if she did not choose her own cases, how she argued them can shed light on her thinking, including how she used her power as a public defender to call out procedural errors on the part of prosecutors and judges. </p>
<p id="lZpuO4">“The Court is grappling with doing novel criminal justice issues all the time, whether that is Fourth Amendment cases or taking up issues related to constitutional policing,” said Daniel Goldberg, the legal director of Alliance for Justice, a progressive advocacy organization. “Jackson has seen these issues from a broad perspective — as a litigator, as a policy maker and as a judge. The Court currently lacks this multi-faceted perspective.”</p>
<p id="tG74AE">One case that has attracted much attention is that of Khi Ali Gul, the Guantánamo Bay detainee. Jackson made her way to the public defender’s office after the Supreme Court ruled in <em>Rasul v. Bush</em> in 2004 that detainees on the base in Cuba<strong> </strong>could challenge their detainment in federal court.</p>
<p id="v9NVSu">“Our office had a number of these cases. It was a brand new area of law so nobody really knew what the law was. We didn’t yet know what claims or issues we could raise,” Kramer said. </p>
<p id="Ztz7dR">But as cases arose, the office needed someone to help with this legal work. “It was complex and very novel. It required somebody who had a brilliant legal mind. It was assigned to Ketanji,” Kramer said. “She did not ask for it.”</p>
<p id="Smy49I">Gul was seeking habeas corpus review of his classification as an “enemy combatant” and his detention in Guantánamo Bay. In a <a href="https://www.scribd.com/document/556639705/Gul-v-Bush-amended-habeas-petition">brief</a> filed in 2005, Jackson argued that Gul lacked the ability to “vindicate his rights under domestic and international law” since he was being held at Guantánamo without being charged with an offense, appearing before a military or civil tribune, or being given access to counsel. </p>
<p id="fVCBe7">The United States was holding Gul “virtually incommunicado,” Jackson wrote, not informing him of his rights under the Constitution, the standards of the US military, the Geneva Convention, and other international law. She argued his rights to “freedom from torture” and from “cruel, inhuman, and degrading treatment” had been violated and that he was suffering from severe physical and psychological abuse as a result of being locked in his cell for 23 hours a day. </p>
<p id="rE5Z71">The case was later consolidated with other detainee cases;<strong> </strong>Gul was sent back to Afghanistan in 2015, following a 2009 executive order from President Obama that initiated a review of cases like Gul’s. In an effort to close the Guantánamo Bay prison, Gul’s transfer was unanimously approved by the many departments commissioned to review the case. </p>
<p id="vDcL66">Jackson considered the case career-defining. Although she wasn’t able to see Gul’s case through while she was a public defender, she continued to advocate on behalf of Guantánamo detainees, co-writing Supreme Court amicus briefs for two cases (<em>Boumediene v. Bush</em> and <em>Al-Odah v. United States) </em>while at Morrison & Foerster. She also co-wrote a brief on behalf of the libertarian Cato Institute and other groups in 2009, arguing that the US did not have the authority to detain lawful residents as enemy combatants. </p>
<p id="KEFi5X">“I believe that I was assigned to work on these amicus briefs because of the knowledge of the military tribunal processes that I had accumulated from my prior work as an assistant federal public defender,” Jackson wrote.</p>
<p id="gatRmx">When asked whether she was concerned that her work for Gul would return him to “his terrorist activities,” Jackson explained that her brother was deployed in Iraq when she represented Gul, giving her a deeper understanding of the US’s detention of people in Guantánamo. </p>
<div class="c-wide-block"> <figure class="e-image">
<img alt=" " data-mask-text="false" src="https://cdn.vox-cdn.com/thumbor/njzXNT1UUWenrdNqhalGNIWnfgk=/800x0/filters:no_upscale()/cdn.vox-cdn.com/uploads/chorus_asset/file/23326407/GettyImages_1238758379.jpg">
<cite>Kent Nishimura/Los Angeles Times via Getty Images</cite>
<figcaption>Ketanji Brown Jackson delivers remarks at the White House in February on her nomination by President Joe Biden to serve as an associate justice of the Supreme Court.</figcaption>
</figure>
</div>
<p id="zTpyyk">“In the wake of the horrific terrorist attacks in September of 2001, I was also among the many lawyers who were keenly aware of the threat that the 9-11 attacks had posed to foundational constitutional principles, in addition to the clear danger to the people of the United States,” she wrote. But she maintained that as an attorney, her duty was to “represent her clients zealously.”</p>
<p id="3pSiPk">The case showed how Jackson handled a new and quickly evolving area of law. In other moments during her time as a public defender, she worked on behalf of criminal defendants seeking to appeal their convictions.</p>
<p id="mflZ4N">In 2007, Jackson <a href="https://caselaw.findlaw.com/us-dc-circuit/1278913.html">convinced a three-judge panel</a> to vacate the conviction of her client Andrew J. Littlejohn III. Littlejohn had been convicted of unlawfully possessing a gun as a felon after police found a gun hidden in his home. </p>
<p id="tJnILL">Jackson, upon appealing the case, argued that the jury selection process had been flawed — the trial judge asked potential jurors questions in a manner that allowed them to avoid answering whether they had relatives who were police officers, a detail that, if true, could make them biased against the defendant. The judges unanimously ruled that the trial violated Littlejohn’s Sixth Amendment right to an impartial jury. </p>
<p id="VYYIWq">In 2006, Jackson secured a plea deal for a man accused of threatening to blow up the federal courthouse in DC. Jackson argued that since he did not act on the threat, most of the charges against him should be dropped. Prosecutors agreed, and a sentencing judge determined that the time he served in pretrial detention was sufficient and ensured the man moved to Florida — away from the people he threatened — and seek out counseling, according to the <a href="https://www.washingtonpost.com/politics/2022/02/11/ketanji-brown-jackson-supreme-court-defender/">Washington Post</a>. Jackson got the government to back down in favor of an order that took the defendant’s state of mind into account. </p>
<p id="D2mvzQ">In 2005, Jackson’s advocacy overturned the conviction of former lawyer Navron Ponds, who had been convicted of five felony counts of tax evasion (he <a href="https://www.justice.gov/archive/tax/usaopress/2003/txdv0303197.html">owed over $117,000</a> after failing to file federal personal income taxes for several years) in connection to accepting a Mercedes-Benz that the mother of a drug dealer gifted him as a retainer. Ponds was <a href="https://caselaw.findlaw.com/us-dc-circuit/1171990.html">sentenced to 20 months</a> in prison. </p>
<p id="WvKTnL">Jackson argued in an appeal that prosecutors violated Ponds’s Fifth Amendment right against self-incrimination when they required that he turn over certain personal records. “Because the government has failed to show with reasonable particularity that it knew of the existence and location of most of the subpoenaed documents, we hold that Ponds’ act of production was sufficiently testimonial to implicate his right against self-incrimination,” the panel of judges <a href="https://caselaw.findlaw.com/us-dc-circuit/1171990.html">wrote</a>. They sent the case back to the lower district court, where Ponds was sentenced to probation.</p>
<p id="d2AyWh">The Supreme Court’s work on criminal cases often doesn’t get the same attention as its highest-profile decisions, and typically the bulk of its workload is civil actions. But the Court encounters cases involving criminal law frequently: in 2020, according to <a href="https://harvardlawreview.org/supreme-court-statistics/">Harvard Law Review</a>, the Court considered two state criminal cases; six appeals on federal incarceration; and seven federal criminal cases. Their decisions can be life or death, if dealing with an inmate facing execution; they can affect how criminal cases are handled across the country. </p>
<div class="c-wide-block"> <figure class="e-image">
<img alt=" " data-mask-text="false" src="https://cdn.vox-cdn.com/thumbor/qxzSN1PVmoNa0WNaH7Cd4F83aKE=/800x0/filters:no_upscale()/cdn.vox-cdn.com/uploads/chorus_asset/file/23328547/GettyImages_1239237502.jpg">
<cite>Tom Williams/CQ-Roll Call, Inc via Getty Images</cite>
<figcaption>Judge Ketanji Brown Jackson waits for the US Capitol subway in between meetings on March 16.</figcaption>
</figure>
</div>
<p id="bu48gn">But for the past three decades, no one on the Court has had public defender experience representing the people who are most affected by its decisions in criminal cases like this. Public defenders — and those who believe that it is past time to bring greater diversity to the Supreme Court — see Jackson’s potential appointment as an opportunity for America to bolster its ideals.</p>
<p id="7cBmbB">“We claim that the goals of the criminal legal system are fairness and justice,” Camara said. “Public defenders stand up every day to make sure that those principles are actually realized by people who are oftentimes disproportionately facing targeted racism and other inequities.” </p>
<p id="nbmRrC">When Jackson’s record has come under scrutiny in the past, she has never expressed regret. Instead, she spoke about the valuable perspective she gained from the work. When questioned last year by senators about why she decided to spend her time defending criminals, she <a href="https://www.judiciary.senate.gov/imo/media/doc/Brown%20Jackson%20Responses1.pdf">wrote</a>: “I lacked a practical understanding of the actual workings of the federal criminal justice system, and I decided that serving ‘in the trenches,’ so to speak, would be helpful.”</p>
<p id="jOX6LM">Ultimately, she said,<strong> </strong>it was about giving clients a fair chance under the law. In her questionnaire, she wrote that she saw her work as promoting “core constitutional values.”</p>
<p id="cm6HTC">“The government cannot deprive people who are subject to its authority of their liberty without meeting its burden of proving its criminal charges,” she wrote, continuing: “Every person who is accused of criminal conduct by the government, regardless of wealth and despite the nature of the accusations, is entitled to the assistance of counsel.”</p>
<p id="0mlyEi"></p>
https://www.vox.com/22979925/ketanji-brown-jackson-public-defenderFabiola Cineas2022-03-18T13:20:00-04:002022-03-18T13:20:00-04:00Josh Hawley’s latest attack on Ketanji Brown Jackson is genuinely nauseating
<figure>
<img alt="" src="https://cdn.vox-cdn.com/thumbor/Fe9alpLsKXIkWdBOHe8g-70aVPg=/445x0:4000x2666/1310x983/cdn.vox-cdn.com/uploads/chorus_image/image/70642059/1236166050.0.jpg" />
<figcaption>Sen. Josh Hawley asks a follow-up question to US Attorney General Merrick Garland as he testifies before a Senate Judiciary Committee hearing on October 27, 2021. | Tom Brenner-Pool/Getty Images</figcaption>
</figure>
<p>Hawley’s going to a place that decent people have the good sense not to go.</p> <p id="YZqLVC">On Wednesday evening, Sen. Josh Hawley (R-MO) leveled a false and astonishing charge against Supreme Court nominee Ketanji Brown Jackson. Judge Jackson, Hawley untruthfully claimed, spent the last quarter decade advocating for — and later using her position as a judge to protect — child pornographers.</p>
<div id="eGK4ut">
<blockquote class="twitter-tweet" data-conversation="none">
<p lang="en" dir="ltr">Judge Jackson has a pattern of letting child porn offenders off the hook for their appalling crimes, both as a judge and as a policymaker. She’s been advocating for it since law school. This goes beyond “soft on crime.” I’m concerned that this a record that endangers our children</p>— Josh Hawley (@HawleyMO) <a href="https://twitter.com/HawleyMO/status/1504221927665250305?ref_src=twsrc%5Etfw">March 16, 2022</a>
</blockquote>
<script async="" src="https://platform.twitter.com/widgets.js" charset="utf-8"></script>
</div>
<p id="nAb8Uh">Hawley’s broad allegation is false. His most substantive claim against Jackson is that as a judge she frequently did not follow the federal sentencing guidelines when sentencing child pornography offenders. But, as Ohio State law professor and sentencing policy expert Douglas Berman writes, “the federal sentencing guidelines for” child pornography offenders “<a href="https://sentencing.typepad.com/sentencing_law_and_policy/2022/03/contextualizing-judge-jacksons-mainstream-sentencing-record-in-federal-child-porn-cases.html">are widely recognized as dysfunctional and unduly severe</a>.”</p>
<p id="G9luzR">It’s also a stunningly inflammatory charge, reminiscent of conspiracy theories such as <a href="https://twitter.com/HawleyMO/status/1504221927665250305">QAnon</a> or <a href="https://www.vox.com/policy-and-politics/2016/12/5/13842258/pizzagate-comet-ping-pong-fake-news">Pizzagate</a>, which posit that prominent liberals are part of a vast ring of pedophiles. Similarly incendiary claims have inspired violence in the past, such as when a man with an assault rifle opened fire in a DC pizza restaurant in 2016. The man was apparently motivated by his unfounded belief that Hillary Clinton and her former campaign chair John Podesta ran a child sexual abuse ring in the basement of this pizzeria.</p>
<p id="nUv3Ds">Hawley sits on the Senate Judiciary Committee, which will hold a confirmation hearing on Jackson’s nomination next week. If his public statements this week are any indication, it’s likely that Hawley will spend his portion of this hearing berating Jackson with allegations that she is somehow an ally of sex offenders. It is most likely inevitable, in other words, that Hawley’s attacks on Jackson will reach a wide audience.</p>
<p id="LaDjyz">Jackson, it is worth noting, is one of the most scrutinized individuals in the entire legal profession. Even before President Joe Biden nominated her to the Supreme Court, she faced three Senate confirmation hearings — once when she was named to the US Sentencing Commission, a second time after she was nominated to a trial judgeship, and a third time when she was nominated to her current job as a federal appellate judge. Her Supreme Court nomination was endorsed by the <a href="https://fop.net/2022/02/fop-national-president-patrick-yoes-statement-on-nomination-of-ketanji-brown-jackson-to-scotus/">Fraternal Order of Police</a> and by the <a href="https://www.politico.com/news/2022/03/14/police-chiefs-back-ketanji-brown-jackson-for-supreme-court-00017025">International Association of Chiefs of Police</a>. </p>
<p id="fBf7Kl">Hawley, in other words, appears to believe that Jackson’s record was probed by the Senate on three separate occasions, by the nation’s largest police union, and by an organization <a href="https://www.theiacp.org/about-iacp">representing over 30,000 police leaders</a>. And yet, somehow, none of them noticed that she’s been an open advocate for child pornographers for more than a quarter-century.</p>
<p id="Ot62J4">I would hope that no one would take seriously such an implausible allegation, especially when it comes from a man who is best known for <a href="https://www.abc27.com/news/sen-hawley-criticized-for-saluting-capitol-protesters-with-fist-pump/">raising his fist in solidarity with protesters</a> shortly before many of them attacked the United States Capitol. But, because Hawley’s presence on the Judiciary Committee ensures that he can loudly broadcast these allegations next week, it’s worth a detailed rebuttal.</p>
<h3 id="5Kuee2">Hawley’s attack on Jackson has three parts — none of them are honest</h3>
<p id="LTvDeC">The senator’s misleading<strong> </strong>accusations can be broken down into three parts. First, he claims that a <a href="https://www.jstor.org/stable/1342027">scholarly article</a> that Jackson wrote while she was still a law student “<a href="https://twitter.com/HawleyMO/status/1504221933046534146">questioned making convicts register as sex offenders</a>.” In reality, the article examines a constitutional question that was unresolved in 1996, when Jackson published it: under what circumstances are laws that apply retroactively to convicted sex offenders permissible under the Constitution. </p>
<p id="3YSx67">As a law student, Jackson concluded that certain constitutional protections, such as the rule that <a href="https://www.law.cornell.edu/constitution-conan/article-1/section-9/clause-3/ex-post-facto-laws">criminal sanctions may not be applied retroactively</a>, do not apply to some laws regulating sex offenders, but do apply to others. It was a nuanced constitutional argument and several judges cited her piece favorably in the years after it was published.</p>
<p id="LAnjDB">Seven years after Jackson published her piece, the Supreme Court laid out a framework in <a href="https://www.law.cornell.edu/supct/html/01-729.ZO.html"><em>Smith v. Doe</em></a> (2003) which guides when restrictions on sex offenders, such as a requirement that they register with local authorities, can be applied retroactively.</p>
<p id="BaITKS">Student law review articles (known as “notes” in legal academic parlance) are often a great opportunity for law students to gain experience producing legal scholarship, but they are typically ignored by lawyers and judges. Jackson’s note was an exception. In the interregnum between when the piece was published, and when the Supreme Court handed down <em>Smith</em>, four different judicial opinions cited Jackson’s note, including a <a href="https://scholar.google.com/scholar_case?case=17357940086039712719&hl=en&as_sdt=6&as_vis=1&oi=scholarr">unanimous opinion by the Supreme Court of Wyoming</a>.</p>
<p id="2twuG0">Presumably, the highest court in one of the nation’s reddest states did not rely on Jackson’s note because Wyoming’s justices believed that she was advocating for child pornographers. </p>
<p id="ndKZHy">The second prong of Hawley’s attack on Jackson is less of a factual allegation and more of an expression of incredulity. He criticized Jackson because, as a member of the Sentencing Commission, she once probed whether some child pornography offenses should be considered “<a href="https://twitter.com/HawleyMO/status/1504221942903197699">less-serious</a>” than others.</p>
<p id="1FOXpo">Of course, the very purpose of sentencing law and policy is to help judges distinguish among individuals who, on paper, have committed similar crimes, but who may be more or less deserving of severe punishment. Most people would agree that a person who shoplifts for the thrill of it has committed a more serious offense than someone who steals bread to feed their starving child. A person who kills for pleasure is more deserving of society’s harshest punishments than someone who, after a night of heavy drinking, gets in a fight and kills their opponent.</p>
<p id="B8sIHR">But, just in case it is not obvious that yes, some sex offenses are more severe than others, let’s examine two cases heard by Judge Jackson which drive this point home.</p>
<p id="gutXth">The facts of <a href="https://storage.courtlistener.com/recap/gov.uscourts.dcd.203739/gov.uscourts.dcd.203739.21.0.pdf"><em>United States v. Sears</em></a> are extremely disturbing. According to prosecutors, Jeremy Sears offered to send nude pictures of his 10-year-old daughter to an undercover FBI agent. He also shared more than 100 child pornographic videos with this agent, many of which depicted children being vaginally or anally raped by adults. A psychological examination of Sears determined that he “displayed a strong pedophilic interest” and was in a “high-risk category” for recidivism. </p>
<p id="ydL8Q2">Judge Jackson sentenced Sears to nearly six years in prison, plus an additional 120 months of supervised release.</p>
<p id="Z6fOas">The facts of <a href="https://www.courtlistener.com/docket/5057626/united-states-v-hawkins/"><em>United States v. Hawkins</em></a> involve a much younger offender. Wesley Hawkins was 18 years old and still in high school when he shared about two dozen child sexual abuse images and videos with an undercover detective. When law enforcement arrived at his home with a search warrant, he admitted to viewing child pornography and, according to prosecutors, “<a href="https://storage.courtlistener.com/recap/gov.uscourts.dcd.161652/gov.uscourts.dcd.161652.21.0.pdf">timely notified the authorities of his intention to enter a guilty plea</a>.” </p>
<p id="tX3Bjz">A psychological evaluation of Hawkins determined that “there is <a href="https://storage.courtlistener.com/recap/gov.uscourts.dcd.161652/gov.uscourts.dcd.161652.20.0.pdf">no indication that he is sexually interested in prepubescent children</a>,” 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.” Jackson sentenced Hawkins to 3 months in prison plus an additional 73 months of supervised release.</p>
<p id="5vAm21">No one should minimize Mr. Hawkins’s crime. There is no such thing as a victimless child pornography crime, because anyone who views or shares such pornography helps create a market for content involving children being sexually assaulted. But I would think it obvious that someone who offers to create and distribute pornographic images of his prepubescent daughter is a more serious offender than Hawkins.</p>
<p id="IcWmzy">The third prong of Hawley’s attack on Jackson appears to be literally true, but only because Hawley uses very precise wording — he claims that Jackson “<a href="https://twitter.com/HawleyMO/status/1504221942903197699">deviated from the federal sentencing guidelines in favor of child porn offenders</a>” in seven cases where she sentenced child pornographic offenders. </p>
<p id="fmjMGF">While Jackson did, indeed, sentence these seven offenders to less time in prison than these sentencing guidelines recommend, Hawley’s allegation leaves out some important context. The guidelines’ approach to most child pornography offenders is <a href="https://twitter.com/RachelBarkow/status/1504606457752346628">widely viewed as too draconian</a> by a bipartisan array of judges, policymakers, and even some prosecutors. </p>
<p id="xohNY4">According to a 2021 report by the US Sentencing Commission, “the majority (<a href="https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2021/20210629_Non-Production-CP.pdf">59.0%</a>) of nonproduction child pornography offenders received a variance below the guideline range” when they were sentenced (“nonproduction” refers to offenders who view or distribute child pornography, but do not produce new images or videos). And, when judges do depart downward from the guidelines, they typically impose sentences that are <a href="https://sentencing.typepad.com/sentencing_law_and_policy/2022/03/contextualizing-judge-jacksons-mainstream-sentencing-record-in-federal-child-porn-cases.html">more than 50 months lower</a> than the minimum sentence recommended by the guidelines.</p>
<p id="ugzwFx">Indeed, guidelines sentences are so harsh that even many prosecutors advise judges not to follow them. As Berman, the sentencing law professor, notes in his own examination of nine child pornography cases heard by Judge Jackson, “in a majority of these cases (5 of 9) the <a href="https://sentencing.typepad.com/sentencing_law_and_policy/2022/03/contextualizing-judge-jacksons-mainstream-sentencing-record-in-federal-child-porn-cases.html"><em>prosecution</em> advocated for a below-guideline sentence</a> and in three others the prosecution advocated for only the guideline minimum.”</p>
<h3 id="z8NHgu">How sentencing actually works in federal child pornography cases</h3>
<p id="e5rIe5">The federal sentencing guidelines can be found in a <a href="https://www.ussc.gov/guidelines/2021-guidelines-manual-annotated">lengthy manual</a> that’s drafted by the Sentencing Commission and reviewed by Congress. The heart of these guidelines is a grid that recommends a sentencing range to judges based on the severity of the defendant’s offense, and the defendant’s past criminal history.</p>
<figure class="e-image">
<img alt=" " data-mask-text="false" src="https://cdn.vox-cdn.com/thumbor/bpUFC5jd5veCD-OzYKgmOfav1Ng=/800x0/filters:no_upscale()/cdn.vox-cdn.com/uploads/chorus_asset/file/23325782/temp.png">
<cite>US Sentencing Commission</cite>
<figcaption>A truncated snapshot of the table at the heart of the federal sentencing guidlines.</figcaption>
</figure>
<p id="8iSgpc">To determine the appropriate guidelines sentence, a judge must first determine what the “base offense level” is for the crime a defendant was convicted of committing — for child pornography offenses, the <a href="https://guidelines.ussc.gov/gl/%C2%A72G2.2">base level is either 18 or 22</a>. This number will then increase or decrease if the offender meets certain criteria — if a child pornography offender possessed more than 600 images, for example, <a href="https://guidelines.ussc.gov/gl/%C2%A72G2.2">the offense level is increased by 5</a>.</p>
<p id="YIcd8n">Calculating the proper guidelines sentence, however, is rarely the end of the sentencing process. In <a href="https://www.law.cornell.edu/supct/html/04-104.ZO.html"><em>United States v. Booker</em></a> (2005), the Supreme Court held that the guidelines are merely “advisory,” so judges now have fairly broad discretion to hand down sentences outside of the range recommended by the guidelines.</p>
<p id="rwuwnN">In a <a href="https://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/sex-offense-topics/201212-federal-child-pornography-offenses/Full_Report_to_Congress.pdf">2012 report</a>, moreover, the Sentencing Commission warned that “most stakeholders in the federal criminal justice system consider the nonproduction child pornography sentencing scheme to be seriously outmoded.” This report, which was released while Jackson was still a member of the commission, was unanimous. It was joined by <a href="https://twitter.com/RachelBarkow/status/1504606860674056197">all of the commission’s Democratic and Republican members</a> — including Dabney Friedrich, whom former President Donald Trump later appointed to the federal bench.</p>
<p id="q2gEiO">As the 2012 report noted, judges typically did not rely on the guidelines when sentencing child pornography offenders. In 2011, they handed down sentences below the range recommended by the guidelines <a href="https://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/sex-offense-topics/201212-federal-child-pornography-offenses/Full_Report_to_Congress.pdf">nearly two-thirds (62.8 percent) of the time</a>.</p>
<p id="91cvFm">The report also offered several reasons why most judges believed that the guidelines governing child pornography offenses are too harsh. When the guidelines were drafted, for example, offenses involving the use of a computer were considered particularly severe, and the guidelines <a href="https://guidelines.ussc.gov/gl/%C2%A72G2.2">call for a 2 level enhancement with such offenses</a>. By 2010, however, <a href="https://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/sex-offense-topics/201212-federal-child-pornography-offenses/Full_Report_to_Congress.pdf">over 96 percent</a> of child pornography offenders used a computer — so the guidelines effectively increased the recommended sentence for virtually all offenders.</p>
<p id="Opu2ty">Additionally, the report noted that “recent social science research — by both the Commission and outside researchers — has provided new insights about child pornography offenders and offense characteristics that are relevant to sentencing policy.” This research made it easier to identify which offenders were likely to reoffend, and which offenders may benefit from “psycho-sexual treatment of offenders’ clinical sexual disorders.” </p>
<p id="FDlDAq">Judges, in other words, now have enough information to hand down harsher sentences to offenders who are more likely to recidivate, and lighter sentences coupled with mandatory treatment for offenders who could benefit from that treatment.</p>
<p id="8YFBkz">There’s another reason why judges frequently depart from the sentencing range recommended by the guidelines: The guidelines can be a blunt instrument, applying similar sentencing ranges to vastly different offenders.</p>
<p id="Cg1wEE">Consider, once again, the <em>Sears</em> and <em>Hawkins</em> cases. Although Sears’s offense was far more severe than Hawkins’s, under the guidelines, <a href="https://storage.courtlistener.com/recap/gov.uscourts.dcd.203739/gov.uscourts.dcd.203739.21.0.pdf">both</a> <a href="https://storage.courtlistener.com/recap/gov.uscourts.dcd.161652/gov.uscourts.dcd.161652.21.0.pdf">men</a> committed a crime with an offense level of 30. Had they been sentenced under the guidelines, <a href="https://www.ussc.gov/guidelines/2021-guidelines-manual/annotated-2021-chapter-5">both would have received a sentence of 97 to 121 months</a>.</p>
<p id="RW1PnI">But not even the Justice Department thought that such a result would be just. In the <em>Sears </em>case, prosecutors <a href="https://storage.courtlistener.com/recap/gov.uscourts.dcd.203739/gov.uscourts.dcd.203739.21.0.pdf">recommended a sentence of 97 months</a> (he received 71). In the <em>Hawkins </em>case, prosecutors <a href="https://storage.courtlistener.com/recap/gov.uscourts.dcd.161652/gov.uscourts.dcd.161652.21.0.pdf">recommended a sentence of just 24 months</a> (he received 3).</p>
<p id="Q2Toh3">So, while Hawley is technically telling the truth when he says that Jackson “deviated from the federal sentencing guidelines” when sentencing child pornography offenders, so do most federal judges. The consensus view within the judiciary and among sentencing policymakers is that the guidelines sentences for most child pornography offenders are too high, and judges routinely hand down lighter sentences for these offenders than the guidelines recommend.</p>
<p id="Gy9Bwl">An honest look at Jackson’s record reveals that, as a law student, she wrote a nuanced analysis of a difficult constitutional question that vexed many judges — and that several judges relied upon in their own opinions. It reveals that, like any sentencing policymaker, Jackson had to draw distinctions among offenders who had all committed grave crimes. And it reveals that, as a judge, her sentencing practices were in line with those of other judges.</p>
<p id="Hu38sf">But<strong> </strong>Hawley’s attack on Jackson is not honest.</p>
https://www.vox.com/2022/3/18/22983877/supreme-court-josh-hawley-ketanji-brown-jackson-child-pornography-sentencingIan Millhiser2022-02-25T14:37:09-05:002022-02-25T14:37:09-05:00Biden picks Ketanji Brown Jackson as his Supreme Court nominee
<figure>
<img alt="" src="https://cdn.vox-cdn.com/thumbor/yuy7XDUOXX9nDn_wqFjk4r9lhzs=/565x0:5120x3416/1310x983/cdn.vox-cdn.com/uploads/chorus_image/image/70549019/GettyImages_1238756291.7.jpg" />
<figcaption>Judge Ketanji Brown Jackson speaks after being nominated to be the next justice of the US Supreme Court, on February 25 at the White House. | Saul Loeb/AFP via Getty Images</figcaption>
</figure>
<p>President Biden’s Supreme Court nominee is a conventionally qualified judge with a strong background in criminal justice reform.</p> <p id="WFSCJn">President Joe Biden <a href="https://twitter.com/POTUS/status/1497225829566324741">will nominate Judge Ketanji Brown Jackson</a>, a former public defender and current judge on a powerful appeals court circuit, as his nominee to replace <a href="https://www.vox.com/22262764/stephen-breyer-supreme-court-justice-abortion-biden">retiring Supreme Court Justice Stephen Breyer</a>.</p>
<p id="MIqGCF">If confirmed, Judge Jackson will be the first Black woman ever to sit on the Supreme Court, and she enters the confirmation process with an impressive resume full of the kind of elite credentials typical for new justices. Yet, while Jackson has been a judge for nearly a decade, her record is heavy on complex, technocratic cases and light on the sort of contentious issues that typically drive confirmation fights. </p>
<p id="YOyQNM">In a less polarized era, Jackson’s mix of superb legal credentials and a largely apolitical record would have made her a shoo-in for confirmation. In today’s era, it means that she will probably be narrowly confirmed.</p>
<p id="Up1PFJ">Jackson’s own speech introducing herself to the nation at a <a href="https://www.youtube.com/watch?v=MH9JxBKQ32g">White House event Friday afternoon</a> emphasized traits that are likely to appeal to conservatives. Jackson opened by “thanking God for delivering me to this point in my professional journey,” and stating that “one can only come this far by faith.” She also mentioned her parents’ 54-year-long marriage, and the fact that her brother and two of her uncles worked as police officers; one of those uncles, as chief of police in Miami, Florida.</p>
<p id="ExMNeO">Jackson graduated from Harvard twice, once with honors and once with high honors, and clerked for Breyer — a particularly coveted credential typically reserved for young lawyers with <a href="https://www.vox.com/policy-and-politics/2019/12/9/20962980/trump-supreme-court-federal-judges">absolutely stratospheric academic and professional records</a>. At age 51, Jackson would also be the second youngest justice, behind Justice Amy Coney Barrett, if confirmed.</p>
<p id="B7Jml7">She is also a <a href="https://www.vox.com/22346420/supreme-court-breyer-retires-ketanji-brown-jackson-leondra-kruger-biden-pick">leading expert on federal sentencing policy</a>, having previously served as vice chair of the United States Sentencing Commission, where she helped reduce sentences for drug offenders. If confirmed, she will also be the only justice with significant experience representing low-income criminal defendants (though not the only justice to work as a criminal lawyer; Justices Samuel Alito and Sonia Sotomayor were once prosecutors).</p>
<p id="vH5Lyv">Jackson has been a federal judge since 2013, serving first as a trial judge in DC. In 2021, Biden elevated her to the United States Court of Appeals for the District of Columbia Circuit, which is widely viewed as the <a href="https://www.vox.com/2016/3/16/11249220/merrick-garland-supreme-court-explained">second most powerful court in the country</a> because of its steady diet of cases challenging federal policymaking and other major actions by federal agencies.</p>
<p id="HAUGvF">But Supreme Court confirmations are about ideology, not just qualifications. And Jackson will now face confirmation in a <a href="https://www.vox.com/2021/1/6/22215728/senate-anti-democratic-one-number-raphael-warnock-jon-ossoff-georgia-runoffs">malapportioned Senate</a> where Republicans are overrepresented, and where they control half of the seats. Her impressive resume is unlikely to move <a href="https://www.politico.com/news/2022/01/31/gop-senators-biden-scotus-nominee-00003433">many</a> — if any — Republican senators to confirm someone who is likely to disagree often with the mix of <a href="https://www.vox.com/22431044/neil-gorsuch-nihilism-supreme-court-voting-rights-lgbt-housing-obamacare-constitution">conservative ideologues</a> and <a href="https://archive.thinkprogress.org/the-most-partisan-supreme-court-justice-of-all-fd31c58a25aa/">GOP partisans</a> who currently control the Court.</p>
<p id="mIcP9N">Yet, while widespread Republican opposition to a Democratic Supreme Court nominee is all but ensured, it’s unclear what, exactly, will be the GOP’s case against Jackson. </p>
<p id="z0Kw8Z">Because DC-based federal courts specialize in often very technical disputes involving federal agencies, Jackson has not heard many cases involving the kind of hot-button issues that dominate Supreme Court confirmation hearings. Her record reveals someone who is very comfortable winding her way through a labyrinth of conflicting statutes, but who has never handed down a significant decision on issues such as race or abortion.</p>
<figure class="e-image">
<img alt=" " data-mask-text="false" src="https://cdn.vox-cdn.com/thumbor/9GsA49Yb3yYWawWBps9cQVSNP6E=/800x0/filters:no_upscale()/cdn.vox-cdn.com/uploads/chorus_asset/file/23263907/GettyImages_1232015644.jpg">
<cite>Bill O’Leary/The Washington Post via Getty Images</cite>
<figcaption>Judge Ketanji Brown Jackson, center, talks with local high school students who have come to observe a reenactment of a landmark Supreme Court case at the US Court of Appeals in Washington, DC, in 2019.</figcaption>
</figure>
<h3 id="LNeu0i">Jackson’s nomination is likely to excite criminal justice reformers</h3>
<p id="5T84Gu">As a presidential candidate, Biden promised to <a href="https://www.vox.com/2020/2/25/21153824/biden-black-woman-supreme-court">name a Black woman to the Supreme Court</a> if given the opportunity to do so. He <a href="https://www.scotusblog.com/2022/01/biden-reiterates-promise-to-nominate-a-black-woman-lauds-breyer-as-model-public-servant/">recommitted to that vow</a> when Breyer announced his retirement in January.</p>
<p id="t3m0Ky">During his first year in office, Biden also picked lower court nominees with professional backgrounds that are underrepresented on the federal bench. Many of Biden’s judges are public defenders, civil rights lawyers, or other attorneys with <a href="https://www.vox.com/22587059/joe-biden-courts-judicial-nominations-donald-trump-supreme-court-barack-obama">significant professional experience working for the most vulnerable clients</a>. Jackson fits this mold.</p>
<p id="rsnbbs">In 2003, for example, Jackson left a lucrative job in private practice to spend two years <a href="https://www.scotusblog.com/2022/02/profile-of-a-potential-nominee-ketanji-brown-jackson/">working as a staffer on the US Sentencing Commission</a>, the federal agency that writes guidelines that shape most criminal sentences in federal court. But she eventually decided that, in her own words, she “lacked a practical understanding of the actual workings of the federal criminal justice system” and should <a href="https://www.judiciary.senate.gov/imo/media/doc/Brown%20Jackson%20Responses1.pdf">spend some time “serving ‘in the trenches’”</a> if she was going to help set sentencing policy.</p>
<p id="4pKCr9">To that end, she took a job as an assistant federal public defender in DC, where she represented indigent clients at trial and argued appeals in the DC Circuit — the same court where she now sits. The last Supreme Court justice with significant experience representing criminal defendants <a href="https://www.minnesotalawreview.org/wp-content/uploads/2016/06/Crespo_Online1.pdf">was Justice Thurgood Marshall</a>, the legendary civil rights lawyer who left the Court in 1991.</p>
<p id="9aHYaR">Jackson also became an important criminal justice policymaker before her elevation to the bench in 2013. In 2010, President Barack Obama nominated Jackson to serve as vice chair of the Sentencing Commission, and she served in that role until 2014. </p>
<p id="FDL55x">While Jackson was on the commission, it <a href="https://www.cnn.com/2011/11/01/justice/crack-cocaine-sentencing/index.html">retroactively reduced sentences for many crack cocaine offenses</a> in 2011, permitting about 12,000 incarcerated individuals to seek reduced sentences and making an estimated 1,800 inmates eligible for immediate release. It also <a href="https://www.themarshallproject.org/2015/07/23/federal-prisons-could-release-1-000-times-more-drug-offenders-than-obama-did">cut sentences for most federal drug offenders</a> during her last year as a commissioner.</p>
<p id="LAxUFR">Her work on sentencing earned her rare praise from the top Republican on the Senate Judiciary Committee. During her 2021 confirmation hearing for the DC Circuit, Sen. Chuck Grassley (R-IA) pointed to his own work on the First Step Act, a <a href="https://www.vox.com/future-perfect/2018/12/18/18140973/state-of-the-union-trump-first-step-act-criminal-justice-reform">criminal justice reform bill</a> that became law in 2018, and told Jackson that he “<a href="https://www.judiciary.senate.gov/meetings/04/21/2021/nominations">really appreciate[s] your work on the sentencing reform</a>.” </p>
<p id="GdnJol">But Grassley’s praise of Jackson’s sentencing reform work didn’t actually lead him to support a Democratic nominee to a powerful court. Grassley was one of 44 Republicans who <a href="https://www.senate.gov/legislative/LIS/roll_call_votes/vote1171/vote_117_1_00231.htm">voted not to confirm Jackson to the DC Circuit</a>.</p>
<figure class="e-image">
<img alt=" " data-mask-text="false" src="https://cdn.vox-cdn.com/thumbor/Yufn-1legVpHSMGHiSJHAi_Eack=/800x0/filters:no_upscale()/cdn.vox-cdn.com/uploads/chorus_asset/file/23263774/GettyImages_1232577054.jpg">
<cite>Tom Williams/Getty Images</cite>
<figcaption>Ketanji Brown Jackson, then-nominee to be US circuit judge for the District of Columbia Circuit, greets ranking member Sen. Chuck Grassley before her Senate Judiciary Committee confirmation hearing on April 28, 2021.</figcaption>
</figure>
<h3 id="Xjcvec">Many of Jackson’s most significant decisions involve complex questions about executive power</h3>
<p id="2hVx66">As Jackson herself has explained, DC-based federal judges hear a unique mix of cases that are light on the topics heard by most federal judges, and are “largely comprised of legal disputes <a href="https://www.judiciary.senate.gov/imo/media/doc/Brown%20Jackson%20Responses1.pdf">concerning the scope and application of the federal government’s power</a>.” Often, these sorts of cases involve convoluted statutes governing which agency is allowed to set which policies, and which courts (if any) are allowed to review those decisions.</p>
<p id="63qjT0">Jackson’s decision as a DC trial judge in <a href="https://casetext.com/case/govt-of-guam-v-united-states-1"><em>Guam v. United States</em></a> offers a window into how these cases can tie even veteran judges in knots. That case involved a landfill on Guam, created by the US Navy at a time when Guam was a <a href="https://en.wikisource.org/wiki/Executive_Order_108-A">military protectorate governed by the Department of the Navy</a>. As Jackson explained in her <em>Guam</em> opinion, “by the time the United States government relinquished control of Guam to civilian authorities in the year 1950,” the landfill already contained “significant quantities of trash and hazardous waste that posed a serious risk to the surrounding environment.”</p>
<p id="pPuN68">Guam eventually sued the federal government, seeking money to cover the $160 million in costs to clean up this landfill. But Guam sued under a federal environmental law that contained two competing provisions, one of which included a three-year statute of limitations — meaning that Guam’s lawsuit was doomed if this statute of limitations applied.</p>
<p id="JHsx6P">Jackson ruled that the <a href="https://casetext.com/case/govt-of-guam-v-united-states-1">three-year limit did not apply</a> but was <a href="https://casetext.com/case/govt-of-guam-v-united-states-3">reversed by a unanimous DC Circuit panel</a>. That DC Circuit decision was then <a href="https://www.supremecourt.gov/opinions/20pdf/20-382_869d.pdf">reversed by the Supreme Court</a>, effectively reinstating Jackson’s original decision.</p>
<p id="8ai1mo">In <a href="https://scholar.google.com/scholar_case?case=13831942996525443357&hl=en&as_sdt=6&as_vis=1&oi=scholarr"><em>Make the Road New York v. McAleenan</em></a>, Jackson dealt a significant, but ultimately only temporary, blow to the Trump administration’s harsh immigration policies — after navigating a dizzying array of interlocking federal statutes.</p>
<p id="UHTcjT">A federal law permits, but does not require, the federal government to remove undocumented immigrants who have been in the United States for less than two years using an expedited process. In 2019, the Trump administration announced that it would exercise this authority to its maximum extent, effectively denying a meaningful hearing to many immigrants facing deportation.</p>
<p id="QkWbkH">Jackson’s opinion in <em>Make the Road</em> is more than 120 pages long, and it is impossible to summarize the legal issues in this case concisely. They involve a complicated web of federal immigration and administrative procedure laws governing when the expedited process may be used, which procedural steps an administration must complete before changing its immigration policies, and when a federal court is allowed to review the changed policy. </p>
<p id="zs2iVu">Though Jackson ruled against Trump, she did so on narrow grounds, determining that his administration must seek public comment on its new immigration policy and provide a fuller explanation for the change before it could go into effect. Her decision was reversed by the DC Circuit, which determined that the Trump administration was allowed to <a href="https://www.acludc.org/sites/default/files/field_documents/2020_06_23_dc_cir_decision.pdf">make these changes without judicial oversight</a>.</p>
<p id="ASiFvb">Conversely, in <a href="https://scholar.google.com/scholar_case?case=7965304229009944280&hl=en&as_sdt=6&as_vis=1&oi=scholarr"><em>Center for Biological Diversity v. McAleenan</em></a>, Jackson dismissed a lawsuit brought by environmental groups challenging the Trump administration’s decision to waive certain environmental laws while building a border wall near San Diego.</p>
<p id="1g6Gtp">The upshot of these and similar decisions is that, while Jackson often hears cases involving controversial moves from political leaders, it’s hard to tease out an ideology from those decisions. The specific legal questions that come before her frequently involve conflicting statutes and difficult jurisdictional problems, not policy questions such as whether to <a href="https://www.vox.com/2021/11/3/22761240/supreme-court-second-amendment-rifle-bruen-heller-amy-coney-barrett">expand gun rights</a> or <a href="https://www.vox.com/2021/12/10/22827899/supreme-court-texas-abortion-law-sb8-decision-whole-womens-health">ban abortions</a>.</p>
<p id="bSIFQ0">That said, there are a couple of cases likely to receive a fair amount of attention at her confirmation hearing.</p>
<figure class="e-image">
<img alt=" " data-mask-text="false" src="https://cdn.vox-cdn.com/thumbor/JwVwtfB7BzoZA3Zk9OtIqXPxbMM=/800x0/filters:no_upscale()/cdn.vox-cdn.com/uploads/chorus_asset/file/23263825/AP22049809950958.jpg">
<cite>Jacquelyn Martin/AP</cite>
<figcaption>Judge Ketanji Brown Jackson in her Washington, DC, office on February 18. </figcaption>
</figure>
<h3 id="Htqn0b">Jackson v. Trump</h3>
<p id="Bum3eT">The first is Jackson’s lengthy opinion in <a href="https://casetext.com/case/comm-on-judiciary-v-mcgahn"><em>Committee on the Judiciary v. McGahn</em></a>, a case where she ruled against the Trump administration’s attempt to stonewall a congressional investigation. In <em>McGahn</em>, Jackson rejected the Trump administration’s claim that “a President’s senior-level aides have absolute testimonial immunity” from a congressional subpoena, after a House committee subpoenaed former Trump White House counsel Don McGahn.</p>
<p id="uTAaKj">Jackson’s opinion in <em>McGahn</em> may be best known for one of its most widely quoted lines: “Presidents are not kings,” Jackson wrote, and “they do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control.” But the actual holding of her opinion was quite narrow. Though Jackson concluded that senior presidential aides must appear before a congressional committee that subpoenas them, she also held that “the specific information that high-level presidential aides may be asked to provide in the context of such questioning can be withheld from the committee on the basis of a valid privilege.”</p>
<p id="PvnozF">Thus, such a senior aide must physically appear before the committee, but the actual substance of their testimony may be quite thin if the committee probes matters that are protected by executive privilege.</p>
<p id="BlRiK7">Unfortunately, the case descended into a partisan food fight on appeal. A three-judge panel of the DC Circuit <a href="https://www.cadc.uscourts.gov/internet/opinions.nsf/29F7900862BA6CD68525851C00784758/%24file/19-5331-1831001.pdf">initially determined</a> that Jackson lacked jurisdiction to hear the case, with two Republican judges rejecting Jackson’s approach and one Democratic judge in dissent. That decision was repudiated by the full DC Circuit, in a <a href="https://www.cadc.uscourts.gov/internet/opinions.nsf/7371CE6E2AB6A821852585BD0050B937/%24file/19-5331-1855529.pdf">decision that also broke down along party lines</a>. The full court then sent the case back to the same three-judge panel to resolve two lingering questions not addressed by the full court — and the panel once again <a href="https://www.cadc.uscourts.gov/internet/opinions.nsf/0/6402FB14D0F73EDD852585D5005DA953/%24file/19-5331-1859039.pdf">voted along party lines</a> to dismiss the case.</p>
<p id="GA2Iyo">Eventually, after Biden took office, <a href="https://www.npr.org/2021/06/09/1004937632/ex-trump-aide-describes-pressure-he-felt-from-trump-during-the-russia-probe">McGahn agreed to testify in 2021</a>.</p>
<p id="2v9uvJ">In December 2021, Jackson also <a href="https://www.vox.com/2021/12/19/22837673/supreme-court-trump-january-6-investigation-executive-privilege-thompson">joined a unanimous DC Circuit decision</a> holding that Trump cannot prevent the House investigation into the January 6 attack on Congress from obtaining certain records from the Trump White House. That decision, in <a href="https://www.cadc.uscourts.gov/internet/opinions.nsf/913002F9EFB94590852587A60075CC4F/%24file/21-5254-1926128.pdf"><em>Trump v. Thompson</em></a>, was <a href="https://www.vox.com/2022/1/19/22892248/supreme-court-january-6-trump-thompson-commitee-subpoena">upheld by the Supreme Court</a>.</p>
<h3 id="U7Qych">Republicans don’t really have a narrative against Jackson</h3>
<p id="DDvEB5">Biden’s decision to name Jackson to the Supreme Court will surprise no one who pays attention to the judiciary. Obama <a href="https://www.npr.org/2016/03/08/469722360/president-obama-meets-with-supreme-court-candidates">interviewed Jackson</a> for the cursed Supreme Court nomination that eventually went to then-Judge Merrick Garland in 2016 — a rare honor for a judge who, at the time, only served on a trial court. Jackson was also the first Biden nominee confirmed to any court.</p>
<p id="j0gIID">Both the Obama and the Biden White Houses, in other words, sent loud signals that Jackson was a serious contender for the top Court.</p>
<p id="K2gNAf">So when Jackson appeared before the Senate Judiciary Committee last April, Republican senators must have known that this hearing was one of their few chances to rough up a potential Supreme Court nominee before a vacancy even opened on the Supreme Court. Yet the Judiciary Committee's Republicans did not present a coherent narrative against Jackson at her last confirmation hearing, and many of them didn’t even seem to try.</p>
<figure class="e-image">
<img alt=" " data-mask-text="false" src="https://cdn.vox-cdn.com/thumbor/YDOtAKBG_jpDZ__IT0-3YUIU2QY=/800x0/filters:no_upscale()/cdn.vox-cdn.com/uploads/chorus_asset/file/23263753/GettyImages_1232575969.jpg">
<cite>Kevin Lamarque/Getty Images</cite>
<figcaption>Ketanji Brown Jackson testifies before a Senate Judiciary Committee hearing in Washington, DC, on April 28, 2021.</figcaption>
</figure>
<p id="ytzNw5">Sens. Grassley and Mike Lee (R-UT), for example, spent their time asking fairly wonky questions about sentencing policy. Sen. Ted Cruz (R-TX) primarily asked about how Jackson understands vague terms like “judicial activism” and “living constitution.” Sen. Josh Hawley (R-MO) pointed out that Jackson briefly served on the board of a private Christian school that, unbeknownst to Jackson, once published language on its website <a href="https://www.nationalreview.com/bench-memos/ketanji-jackson-montrose-christian/">opposing abortion and marriage equality</a>.</p>
<p id="s6k6Fm">Presumably Hawley, who has often seemed to <a href="https://archive.thinkprogress.org/a-u-s-senator-just-laid-out-a-blueprint-for-turning-the-united-states-into-a-theocracy-17f8262398df/">openly advocate for Christian nationalism</a>, would think that Jackson’s association with this school is a reason to <em>support</em> her nomination.</p>
<p id="Z1lFMY">Meanwhile, a few Republican senators attacked Jackson because her nomination was supported by <a href="https://demandjustice.org/">Demand Justice</a>, a left-leaning group that works on judicial nominations. Sen. Thom Tillis (R-NC) criticized her because her opinion in <em>McGahn</em> was favorably quoted by MSNBC host Rachel Maddow. </p>
<p id="TxNem9">And then there was Sen. Tom Cotton (R-AR), who asked Jackson if she’s “ever represented a terrorist at Guantanamo Bay.” Jackson responded that, during her time as a public defender, she was assigned a client who was detained at Guantanamo.</p>
<p id="WWnzXy">Jackson’s last confirmation hearing, in other words, suggests that, even after Republican opposition researchers had months to comb through her record and find ways to embarrass her at her hearing, the most they were able to find is that Jackson did her job after she was assigned a potentially controversial client, and that she once wrote an opinion that a liberal cable news host liked.</p>
<p id="4HhVvz">Perhaps that explains why Biden chose her. Jackson combines elite credentials and technocratic rigor with a record that Republicans have failed to find any real reason to criticize. In another era, that would have ensured that she’d be confirmed overwhelmingly.</p>
<p id="41j8Jv">In this era, it will likely be just enough to get her the votes of the 50 Democratic senators she needs to make it to the Supreme Court — and, if she’s lucky, maybe a handful of Republicans.</p>
https://www.vox.com/2022/2/25/22912842/supreme-court-nominee-ketanji-brown-jackson-bidenIan Millhiser