Ketanji Brown Jackson Failed To Provide Clarity During Confirmation Hearings
COMMENTARY by Harmeet Dhillion for Real Clear Politics
On day two of her confirmation hearings, Judge Ketanji Brown Jackson – Biden’s nominee for the Supreme Court – remains as evasive as ever on her concerning legal record of leniency toward pedophiles and her views on critical race theory.
Several senators on the Senate Judiciary Committee have pressed her for clarity on her record but only received non-answers in reply. Judge Jackson simply circles important questions, turning them into declarative statements and evading any sense of concrete judicial philosophy. Senators – Republicans and Democrats alike – must continue to press her. American citizens deserve to know every facet of her judicial philosophy.
Judge Jackson’s evasion of clarity is perhaps most evident in how she answered Sen. Marsha Blackburn’s question of “Can you provide a definition for the word ‘woman’?” Judge Jackson replied: “No, I can’t … I’m not a biologist.” This is deeply concerning. How do you adjudicate Title VII claims without being able to answer such a simple question? And Title IX? Furthermore, Judge Jackson should know better than to answer a legitimate question so flippantly – as a judge, she has sat in judgment of thousands of people in courtrooms where she was required to make credibility determinations. If one of her witnesses answered in such a manner while under oath, they’d be risking admonition from the court. By providing such an evasive non-response to a straightforward and highly relevant question in today’s jurisprudence, Judge Jackson fell short of the candor expected of a nominee to the high court.
This has proven to be a theme in her confirmation hearings thus far. On critical race theory, she blatantly obfuscated her record, telling Sen. Cruz “I’ve never studied critical race theory, and I’ve never used it, it doesn’t come up in the work that I do as a judge.” But this isn’t what the record shows. Recently unearthed lectures reveal she believes that critical race theory plays a role in sentencing law – an area in which she is well-versed, having spent substantial parts of her career as a public defender and on the U.S. Sentencing Commission.
Additionally, Jackson has touted at least one of its founders as a hero – and admitted as much in her own words. In a 2020 lecture, Jackson highlighted Derrick Bell, “the godfather of critical race theory,” saying that her family had Bell’s book “on their coffee table for many years.” (Bell, for context, believed that “the Constitution was like ‘roach powder,’ … and his motto was ‘I live to harass white folks.’”)
More dangerously, she has openly promoted one of CRT’s descendant ideologies: the 1619 Project. In one lecture, Jackson dedicated an entire slide to the 1619 Project, echoing its central point that the “true founding” was in 1619 and called its thesis “provocative.”
The Declaration of Independence, of course, was signed in 1776 and enshrined the principles of equality and liberty into our founding document. If confirmed, Jackson would be interpreting its counterpart, the Constitution, as a Supreme Court justice – an extremely worrying prospect. The 1619 Project is so questionable that even The New York Times, which published it, quietly scrubbed some of its most inflammatory rhetoric from the online version, without an editor’s comment. Provocative, indeed.
While Jackson’s answers on critical race theory have done anything but provide clarity, her answers regarding her record of leniency toward pedophiles create even more cause for concern.
Sen. Josh Hawley – who has been at the forefront of alerting Americans to the fact that Jackson has a disturbing record of sentences for child pornography – asked her about one particular case in particular. She responded that she gave a lenient sentence to the child predator because "he presented all of his diplomas and certificates" and "had gotten into this in a way that was, I thought, inconsistent with some of the other cases that I had seen." She also minimized the crime by saying that an offender who only downloaded child pornography for 15 minutes shouldn’t have to spend decades in jail.
Rewind back to when Ketanji was on the U.S. Sentencing Commission. At a hearing on the subject, she said she “mistakenly assumed that child pornography offenders are pedophiles” and that “I’m trying to understand this category of nonpedophiles that obtain child pornography.” And back in law school? She suggested public policy is driven by a “climate of fear, hatred, and revenge” against sex offenders.
Jackson’s “empathy” is not merely theoretical debate – it has translated into her handing down alarmingly lenient sentences for child predators. In far too many disturbing instances, Jackson handed down lenient sentences to pedophiles well below those recommended by sentencing guidelines or requested by prosecutors. If child pornography laws are indeed too harsh – an argument no Democratic senator, despite their posturing on so many other issues during the hearings, has been willing to make – then it is for lawmakers, not unelected judges, to change those laws.
Simply put, Judge Ketanji Brown Jackson must not be let off the hook. Senators must continue to press her for candor and real insight into her judicial philosophy. The American people deserve to know who Judge Jackson really is, and what will guide her decisions on the Supreme Court, if confirmed.