FederalJudicialCornyn, Cruz Question U.S. Supreme Court Nominee Ketanji Brown Jackson

The hearings, which are conducted over several days, began with opening remarks from the senators on Monday.

During their opening statements, Cornyn and Cruz both congratulated Jackson on her nomination and thanked her for her appearance, but expressed concerns that they hoped to address in the days that followed.

“I like the fact that you’ve had such broad experience in our judicial and legal system. But there’s still unanswered questions that remain,” said Cornyn, adding that he was “a bit troubled” by some stances she has taken in the past as well as her representation on behalf of “people who have committed terrorist acts against the United States and other dangerous criminals.”

“I’m also interested as others have mentioned, in your opinion, why pro-abortion, dark money groups, like Demand Justice, and anti-religious liberty groups are pouring millions of dollars into a public campaign in support of your nomination,” said Cornyn.

Cruz’s opening remarks highlighted his frustration with the Democratic Party, which currently controls the evenly divided upper chamber thanks to the tie-breaking vote of Vice President Kamala Harris.

“Our Democratic colleagues want the Supreme Court to be anti-democratic. Our Democratic colleagues get frustrated with the democratic process,” said Cruz. “When they can’t pass gun control laws because the American people don’t support them, they want unelected judges to mandate those same laws instead.”

Both Cruz and Cornyn emphasized that they would treat the nomination process respectfully, particularly in light of the accusations that were hurled against Justice Brett Kavanaugh during his confirmation hearings in 2018.

“This will not be a political circus,” said Cruz. “This will not be the kind of character smear that sadly our Democratic colleagues have gotten very good at.”

Judicial Philosophy

During Cornyn’s allotted time for questioning on Tuesday, most of his focus was on Jackson’s judicial philosophy.

In response to asking if she agrees that “judges should not be politicians,” Jackson said that she agreed.

“Senator, I believe that judges are not policymakers, that we have a constitutional duty to decide only cases and controversies that are presented before us,” said Jackson. “And within that framework, judges exercise their authority to interpret the law and not make the law.”

On that note, Cornyn shifted his attention to a particular aspect of judicial philosophy, the idea of substantive due process.

As an example of the idea in action, Cornyn pointed to the SCOTUS ruling in Obergefell v. Hodges, the landmark case in which the court ruled that states must recognize same-sex marriage as a right protected under the 14th Amendment.

“Why isn’t substantive due process just another way for judges to hide their policy-making under the guise of interpreting the Constitution?” asked Cornyn.

Jackson responded by saying that “justices have interpreted the Due Process Clause of the 14th Amendment to include a substantive revision.”

“The rights to due process they have interpreted to mean not just procedural rights relative to government action but also the protection of certain personal rights related to intimacy and autonomy.”

Jackson listed off a series of protected “personal rights” that justices have interpreted, including those to rear children, travel, marry, and have abortions, 

Cornyn asked if “treating slaves as chattel property” was also on the list.

“I don’t quite remember the basis for the Dred Scott opinion, but I’ll trust you,” responded Jackson.

“The fact is, is it not, that you can use substantive due process to justify basically any result, whether it’s conservative or liberal,” said Cornyn. “It’s just a mode of analysis by the court that allows the court to substitute its opinion for the elected representatives of the people. Would you agree?”

Jackson responded that the court “has identified standards” for deciding when substantive due process is applied as an interpretation.

“[T]he court has said that the kinds of things that qualify are implicit in the concept of ordered liberty or deeply rooted in our nation’s history and tradition. Those are standards that identify a narrow set of activities,” said Jackson.

Asked what “unenumerated rights” SCOTUS might yet identify, Jackson said she could not comment on the hypothetical.

“War Criminal” Accusations

Though the bulk of his questioning on Tuesday focused on Jackson’s judicial philosophy, his final question has also received a lot of attention.

“I don’t know you well, but I’ve been impressed by our interaction and you’ve been gracious and charming,” said Cornyn. “Why in the world would you call Secretary of Defense Rumsfeld and George W. Bush ‘war criminals’ in a legal filing? It seems so out of character for you.”

Jackson said she didn’t remember the specific reference he was making from her representation of a Guantanamo Bay detainee.

“I’d have to take a look at what you meant,” said Jackson. “I did not intend to disparage the president or the secretary of defense.”

Sen. Dick Durbin (D-IL), the chair of the committee, later stated during the hearing, “To be clear, there was no time where [Jackson] called President Bush or Secretary Rumsfeld a ‘war criminal.’”

On social media, Cornyn provided the specific filing in which Jackson, on behalf of a detainee, asserted that “directing, ordering, confirming, ratifying, and/or conspiring to bring about the torture and other inhumane treatment of Petitioner Khiali-Gul constitute war crimes and/or crimes against humanity.”

The petition was filed against Bush, Rumsfeld, and two Army officials.

“If you accuse someone of war crimes you are calling them war criminals,” said Cornyn.

Critical Race Theory

Cruz began his questioning on Tuesday with the subject of Critical Race Theory (CRT), which has become a prominent political issue, particularly with respect to education.

Jackson said that she had heard of the issue as an academic discipline, but did not think that it was taught in K-12 schools.

“I will confess I find that statement a little hard to reconcile with the public record,” said Cruz. “Because if you look at the Georgetown Day School’s curriculum, it is filled and overflowing with critical race theory.”

Cruz went on to list several books that promote CRT and are included in the curriculum at the school, where Jackson is a board member.

“They include a book called ‘Anti-Racist Baby’ by Ibram Kendi,” said Cruz. “One portion of the book says ‘babies are taught to be racist or anti-racist. There is no neutrality.’ Another portion of the book, they recommend the babies confess when being racist.”

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

“I do not believe that any child should be made to feel as though they are racist or though they are not valued or though they are less than, that they’re victims, that they’re oppressors. I don’t believe in any of that,” said Jackson.

Probed further about if she is comfortable with Kendi’s book and others like it being taught to children, Jackson said, “I have not reviewed any of those books, any of those ideas. They don’t come up in my work as a judge, which I’m respectfully here to address.”

Sentencing Decisions in Child Pornography Cases

The second topic that Cruz addressed dealt with Jackson’s views on the sentencing of criminals, highlighting her judicial record on the sentencing of child pornography offenders.

Displaying a chart of eight cases that Jackson ruled in, Cruz compared the sentences that Jackson imposed compared to the sentences requested by the government.

In two instances, Jackson sentenced offenders to the full amount recommended by the government, but in all other instances, the sentences were less than — several drastically so — the recommendation.

To the one extreme, Jackson sentenced an offender to three months rather than the requested 24 months.

Out of all eight cases listed, her sentence was on average 31 percent less than the recommended amount by government prosecutors.

“Your chart does not include all of the factors that Congress has told judges to consider, including the probation offices’ recommendation in these cases,” said Jackson.

“Well Judge Jackson,” said Cruz. “The committee has not been given the probation offices’ recommendations. We would welcome them.”

“The second thing I would say,” added Jackson, “is that I take these cases very seriously as a mother, as someone who, as a judge, has to review the actual evidence in these cases and based on Congress’ requirement, take into account not only the sentencing guidelines, not only the recommendations of the parties, but also things like the stories of the victims, also things like the nature and circumstances of the offense, and the history and characteristics of the defendant.”