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The confirmation hearings for Ketanji Brown Jackson to become the next Supreme Court Justice begin on Monday. On this week’s Amicus, which is exclusive to Slate Plus members, Dahlia Lithwick and Mark Joseph Stern discuss the issues that will likely come up during Jackson’s upcoming hearing.
Their conversation has been edited and condensed for clarity.
Dahlia: Let’s talk about what does seem to be a coherent opposition to Judge Jackson, and we can pull some of these pieces from her prior confirmation hearings. So one piece is the argument against Jackson representing several Guantanamo detainees from 2005 to 2009—as though Americans still are riled that occasionally, lawyers wrote briefs on behalf of Gitmo detainees. So why don’t you go ahead and just stick your fang into that one?
Mark: If you walk with me way back to 2016, when Obama was considering nominating Jane Kelly to the Scalia seat, the conservative judicial lobbying groups put out attack ads that laid into Jane Kelly for being a public defender who defended people accused of crimes who did not have the money to pay for lawyers. This is an age-old tactic that goes way back before then. Conservatives do it way more to liberals than liberals do it to conservatives; you just don’t see these kinds of attacks in the other direction. Part of that is because conservatives rarely do public defense work. So maybe if there were more a level playing field, it’d be different.
But we will always see this with any nominee to any federal position who served as a criminal defense lawyer, and especially a public defender, which KBJ did and did so quite admirably. But just to get it off the plate—yes, she represented Guantanamo detainees. That I think is one of the best and noblest uses of a law degree that could possibly exist in the world. Those individuals are in desperate need of legal counsel; they are guaranteed legal counsel under the Constitution. She provided that counsel zealously, as she was obligated to by the Sixth Amendment. She was effective. She was direct.
And if Republicans claim that that is somehow disqualifying for a judgeship or for the Supreme Court, they are not really attacking Ketanji Brown Jackson—they are attacking the Constitution and the Sixth Amendment that they claim to love so much. There’s not a lot of other conversation we can have about this, because it’s so cynical and so stupid to be a supposedly Constitutional conservative, and then lay into a nominee for enforcing the Constitution and standing by it, for those who are most in need of its protections. I think that’s all I have to say about that.
Dahlia: Well, I will see your cynical and stupid, and raise you Senate Minority Leader Mitch McConnell, who thinks she’s eminently qualified, but has said this:
“Curiously, the same radicals who want to turn Democrats into the party of court-packing also badly wanted Judge Jackson for this vacancy. It’s a matter of record that this nominee was the anointed favorite of these fringe groups. At this time last year, they were already spending dark money to raise her profile. So I intend to explore why groups that are waging political war against the Court as an institution decided Judge Jackson was their special favorite.”
This is, I guess, the transitive property of badness, in which Judge Jackson is not bad but, says Mitch McConnell, bad people support her and therefore, she must be bad by association. Discuss.
Mark: We call this also guilt by association. I think the bottom line here is it’s almost a white flag of surrender to hear someone like Mitch McConnell, a very savvy politician, just try to use this very weak tactic to smear someone, to say, “Well, these people I don’t like happen to support her. I have no evidence that she’s ever spoken to them. I have no evidence that she has any personal or professional connections with any of them, but they like her so she must be bad.”
That has never been a benchmark for a judicial nominee of qualifications. That is just a really pathetic effort to revive this dark money attack line that conservatives have tried to devise, because for years, there were only really dark money conservative groups lobbying for judges. Now, there are a few dark money liberal groups and conservatives are very offended that the playbook has been borrowed by the left. They are just so outraged that they’re going to raise these hypocritical cries of “Demand Justice likes her, so she must support adding 30,000 justices to the Supreme Court, and we must tank her nomination if we don’t want to have to build 50 more buildings in D.C., and grant statehood, and give Joe Manchin…” OK, this whole rant is bad—I don’t know what Mitch McConnell really thinks. I’ll just say it’s not going to work. Nobody knows who Demand Justice is. It’s total inside-baseball. This guilt by association nonsense plays only to people who write for The Hill and are chronically on Twitter. Those people are not going to matter very much for this confirmation.
Dahlia: I guess this brings us tragically, to Sen. Josh Hawley. You may remember him from his last role in, “I support the January 6th insurrectionists.” But now he’s really worried—and this is to the extent that there is a real response coalescing, and by that I mean Sen. Mike Lee and Hawley now have devised their attack plan will be that she likes child predators, or that she singles out child sex offenders for the lightest possible sentences. And again, this really only started surfacing in a couple of tweets, but it does feel like it’s something that they’re going to try to make salient next week.
Mark: Yes. And because it is going to be on the agenda, we have to talk about it, which is very unfortunate. Because if you talk to anyone, who follows district courts, or the sentencing guidelines, or any of this stuff, you’ll understand that plucking a handful of cases out of hundreds the district court judge has overseen tells you nothing about their actual record. You can always find outliers. I think we need to do a brief bit of background here for people who aren’t aware of how federal sentencing works.
What Hawley is doing is really exploiting ignorance and misunderstandings of how sentencing functions to make it seem like KBJ was really outside the norm, which she wasn’t. So we have a set of guidelines for sentencing that provide a range in which a judge is encouraged to sentence someone. So, say they committed a gun crime and there were mitigating circumstances. The judge just going to literally take out this chart and tick off the different factors that the Sentencing Commission has said you should consider. And say, “OK, this plunks you within the range of”—just making this up—”25 months to 40 months. I think there were a sufficient number of mitigating factors that I’m going to put you on the lower range of 25 months.” Or a judge is within their right to say, “You know what? I actually think that the guidelines are a little bit too harsh here. There are a lot of mitigating circumstances. This person is young. They are very sorry for what they did. I’m going to say 20 months.” All of that kind of stuff happens every single day in federal court. It’s happening right now. Tons of judges across the political spectrum will hand down sentences that are at the low end of the range in the guidelines or below the range in the guidelines, because that is their discretion. That is their job as a judge. And again, plucking out a handful of circumstances in which a judge has done that doesn’t tell you anything about anything. All it tells you is one thing about one individual case.
Here we have, I think, nine cases that Josh Hawley has plucked out. And in each of these nine cases, it is absolutely true that Jackson handed down what the guidelines would consider to be relatively light sentences, at the lower end or below what the guidelines suggests for someone who has been convicted of child pornography—not producing child pornography, but possessing child pornography. Not creating it, or sharing it in really broad networks, but just having it. They got caught possessing child pornography.
What I want to just lift up here is this terrific analysis by Douglas Berman, who is a law professor at Ohio State University, Moritz College of Law. He took a look at these cases, and in a majority of these cases that Josh Hawley is freaking out about where Jackson issued a sensibly light sentences in child pornography cases, it was the prosecutors who advocated for a sentence below the guideline range. The prosecutors came into her court and said, “We do not think that the guideline range is fair in this case. We think that this individual should be sentenced to a lesser time in prison than the minimum here.” And she agreed with them, because when the prosecutors say that somebody doesn’t deserve more time in prison, judges generally take heed of that and say, “Well, if the government itself doesn’t think this crime deserves such a draconian punishment, who am I to disagree?”
And in the rest of the cases, you see sentences that are well within the norm of actual federal sentencing, the way that it goes on day after day in our courts, even if they are at the low end or below the guidelines. And that’s because the Sentencing Commission and the Department of Justice have both said that these guidelines are too harsh for child porn possession cases—that they do not serve their purpose, that they are way too draconian, and that they put people in prison for literally decades for something that is very bad. Let’s be clear, child pornography is horrible, possession of child pornography is horrible, inexcusable, undoubtedly a felony, a terrible thing. But these guidelines have people going away for decades and decades, even if this is their first offense, even if they did not produce any of this or even share it.
One of these cases that Hawley cites, the government sought a sentence of 45 years and Judge Jackson ended up imposing a sentence of 29.5 years. In any other peer nation, a sentence of almost 30 years in prison for a crime like this, for a non-violent crime, would be considered barbaric. The fact that Jackson was willing to go that high shows that she is certainly within the norm of judges and within sentencing, and that she is not soft on crime at all. And the fact that she was willing to go below what prosecutors recommended in this case shows she has a good head on her shoulders. And she realizes the discretion and nuance that is required for each individual act of sentencing.
I think if you take one look at this, with a little bit of background, it all falls apart. Josh Hawley’s entire line of attack falls apart immediately. But because people just generally don’t understand how sentencing guidelines work and most people don’t encounter them, it can sound scary and you can manipulate the data to make it sound like she’s soft on child predators, when that is just objectively not the case. And she did when she was on the district court, what hundreds of other judges appointed by every president have done forever.
I really hope in a kind of perverse way that Hawley does bring this up so that she can just completely destroy his line of attack, because she knows everything that I just said, and I’m sure she is prepared to answer this question very well.