Attempt at “gotcha” moment by NC’s Tillis ends up backfiring
U.S. Sen. Thom Tillis took part in the historic confirmation hearing of Judge Ketanji Brown Jackson, the first Black woman to be nominated to the U.S. Supreme Court, with questions Wednesday suggesting that as a judge, she is not tough enough on defendants.
Unlike some of his Republican colleagues, Tillis spoke in even tones, but he cut off Jackson as she tried to answer some of his questions. One of the themes Republican senators are pressing over these days of questioning is that Jackson’s criminal sentences are too light.
Tillis joked he is not an attorney, but “I watch ‘Law & Order’ from time to time.”
He asked about two cases Wednesday morning. One was an opinion Jackson wrote in 2020 in United States vs. Wiggins concerning the release of jail detainees during the COVID-19 pandemic. Tillis read an out-of-context sentence from the opinion. “How can I not read this to say that perhaps they should be released irrespective of the crime for which they’ve been charged?,” he asked.
Jackson replied: “Senator, if you read two more sentences down, that is precisely what I focus on.”
Her written opinion was the opposite of what Tillis was implying.
“I go on to say in that very opinion, Congress has indicated we have to take each case individually,” Jackson said. “We have to look at the harm to the community that might be caused by the release of individual people. We can’t just release everybody, I said in that opinion.”
Tillis then interrupted her answer.
He also asked about a ‘friend of the court’ brief she signed in 2001 as an associate in a Boston law firm in a case dealing with floating buffers around abortion clinics. The issue in that case was the implementation of a 35-foot protest-free zone to keep anti-abortion demonstrators from harassing people as they entered the clinics.
In the second round of questions Wednesday afternoon, Tillis asked about two cases of assault on police officers where Jackson’s sentences were less than the government recommendation.
Jackson said she did not recall all the details.
Two of Jackson’s uncles and her brother are former police officers. One of her uncles is a former Miami police chief.
The International Association of Chiefs of Police has endorsed her nomination, and the national president of the Fraternal Order of Police, in a statement, said she has the “temperament, intellect, legal experience, family background to have earned this appointment.”
Tillis opened his questioning in the morning with a nearly 10-minute speech decrying court packing and efforts to end the Senate filibuster.
He concluded his statements Wednesday afternoon complimenting Jackson.
“I thought you’ve done a great job over the last two days,” he said.
Sen. Jon Ossoff, a Georgia Democrat, started the Senate Judiciary Committee hearing with 30 minutes of questions.
Ossoff asked Jackson about her upbringing and her family’s values. Jackson confirmed that her brother, Ketajh Brown, was a police officer in Baltimore after he served in the U.S. Army. Two of Jackson’s uncles were also police officers and her parents, an attorney and an educator, were also involved in public service.
Ossoff also questioned Jackson about a line in an opinion she wrote that “presidents are not kings.” The 2019 opinion rejected former President Donald Trump’s claim that former White House Counsel Donald McGahn could not be compelled to testify in front of Congress.
Jackson said the founders of the United States broke the power of a monarch into three branches and that each branch — legislative, executive and judicial — was constrained in its power. Throughout the hearings, Jackson has declined to weigh in on questions she considered matters of policy better suited to the legislative or executive branches.
Ossoff said emerging technologies would complicate long-standing constitutional protections, including against unreasonable search and seizure.
“I want to urge you, should you be confirmed, to remain vigilant about how the emergence of new technologies — the way that they become ubiquitous in our lives, the way that virtual spaces are increasingly akin to physical spaces — will require the court to consider very complex questions and to seek technical advice,” he said.
He also said the court should be transparent about the “origin and funding source” of groups providing technical expertise.
Before questioning began Wednesday, Iowa’s Chuck Grassley, who is the ranking Republican member on the committee, jumped into a dispute raised Tuesday night over the availability of records related to Jackson’s sentencing practices.
The White House provided data from the D.C. probation office and other records related to Jackson’s sentencing of convicts as a federal trial judge to Democrats before Republicans.
“No one on our side of the aisle had access to this information,” he said.
After Republicans complained Tuesday evening they’d only just received the records, committee Chairman Dick Durbin, an Illinois Democrat, said he’d received the records some time that day.
In the second round of questioning, Grassley asked, as several other senators did, about Jackson’s judicial philosophy.
Jackson said that, unlike nominees who come from academia who may have more theoretical views of law, hers was better described as a methodology developed through practice. Central to that methodology is a view of limited judicial authority, she said.
Jackson did say she had relied on her policy preference as a trial judge in a specific instance. Grassley asked if Jackson had ever declined to impose an enhanced sentence because she opposed the enhancement policy.
Sentencing enhancements are aggravating factors in a crime — a repeated offense or a drug offense in a school zone, for example — that judges can look at to impose a stricter sentence. Enhancements have also been reported  to disproportionately apply to Black convicts.
Declining to impose an enhancement is in line with judicial power, as decided by Supreme Court case law, she said.
“Given the way in which the guidelines are operating, the disparities that are created in cases, I have at times identified various enhancements that I’ve disagreed with, as a policy matter, because the Supreme Court has said that that’s the authority of a sentencing judge in our system,” she said.
The Senate committee will hear from the American Bar Association and other outside witnesses today.