S1: This Ad Free podcast is part of your Slate Plus membership. Hello Slate Plus listeners and welcome to a very special bonus episode that we have made just for you. We’re bringing you this curtain raiser in advance of the Ketanji Brown Jackson confirmation hearings, which are scheduled to open next week, Monday in the Senate. And the we hear is, of course, me, Dahlia Lithwick. I cover the courts and the law for Slate.com and the wonderful Mark Joseph Stern, who is our partner, wingman, superhero on all things legal jurisprudence and SCOTUS, and certainly my co-conspirator on the slate plus segments that we bring to you on our regular show Weeks a.k.a.. Everybody’s favorite part of the show. Sorry, Mark. Welcome back.
S2: So happy to be here. There’s no other we that I would rather be a part.
S1: Of the codependent discontinuity before we really dive in to what to look for on the Jackson confirmation hearings next week. I think I just wanted to ask you this weird prefatory. Question that I’m sitting with, which is, am I wrong to think that this is the quietest pre confirmation process in modern history? I’m remembering everybody being up to, you know, 12 bells, 72 bells dialed up to 11 about Kagan, about Alito, about certainly Kavanaugh, about Amy Coney Barrett, even about Neil Gorsuch. I just think, other than a bit of kind of side skirmishes about court expansion and Guantanamo in a couple letters in support Ketanji Brown Jackson confirmation hearings just not on anyone’s radar.
S2: I largely agree. I mean, it’s on our radar because it has to be. The news cycle right now is not heavy on CBJ content for sure, especially when compared to, say, ten years ago or so with the Kagan confirmation hearing. And it’s not like Kagan was a hugely controversial or exciting nominee, and it’s not like she changed the balance of the court. But I do feel like there was comparably more excitement and anger and just like fuss over previous hearings than there is now. And I think there’s a couple of reasons for that. And one of those reasons is so brilliantly explained by this writer named Dahlia Lithwick in this great article at Slate about Republicans really sort of raising her, not just bashing her, but avoiding any kind of conversation about Judge Jackson in the run up to the hearings, not talking about her life story, which is so inspirational, not devising really substantive justifications for opposing her, with a few exceptions that we will get to shortly, but trying to kind of dance around it and keep her off the radar. And, you know, part of that is probably racism and sexism. I just think that, like, they have made it very clear from the beginning that they don’t think a black woman is going to be qualified for the Supreme Court. Part of that is a clear political strategy because they have not seized on any really solid attacks. That poll. Well, as far as we can tell, like the attacks have been pretty scattershot, throwing it all against the wall. And I also think that part of it is the compressed timeline here, because, remember, Democrats are playing by the Amy Coney Barrett rule, which is less than a month from announcement to confirmation. And that was a historically fast timeline in modern history. Previous nominees that we remember, most of the other justices on the court today, those processes dragged out for months. And there was a slow build and there was a steady release of documents from their previous work. And if they were in government, there were failures and new stories and little scoop blitz coming out and people pored over their speeches and it was like a slower burn that all culminated in a kind of a big bonfire. And here it’s all happened at the speed of light. It feels to me like it was just yesterday that she was standing there with Biden and Biden was mumbling and trying to pull out that little stepping stool. And now here we are on the eve of her confirmation. So I just think that part of it is Republicans set a super accelerated timeline, which Democrats wisely adopted. I hope that both parties, frankly, continue that timeline. Maybe I’ll regret saying that next time a Republican nominate someone really sketchy and we need more time to like go over their thousands of pages of documents from the Bush White House or whatever. But it seems like, you know, they’ve gotten the job done in a way that has minimized the fuss and drama and that has made CCB j not an A1 story for most of the past few weeks.
S1: I think also, to be frank, there’s war in Ukraine. Yes, gas prices. There’s a million A1 stories, each of which feels existential. And it goes without saying. I think you said it. This doesn’t change the balance of power on the court. This isn’t swapping in a Brett Kavanaugh for an Anthony Kennedy or an Amy Coney Barrett for an RPG, which really does change everything. So there’s a way in which you can just bat it all away as this doesn’t matter. There’s one other thing that I think is interesting, and I feel like maybe you said this to me in early discussions about Judge Jackson, but I want to say it again. She is the opposite of a Supreme Court performance artist. This is not a person who gave speeches or wrote law review articles or, with the exception of the Don McGahn opinion, really did a lot of flashy juggling of fire in order to be noticed and put on the court. Because you’re quite right, the drops of this is who she is. This is her information. Much of this was already in the public domain. It was years and years of meticulous district court opinions. This is just not a person who was living her career at any stage saying, look at me, look at me, wouldn’t I be great for SCOTUS? And here are my audition tapes. For Dancing with the Stars. And so there’s a strange way in which she defies the convention of the last couple of years of being someone that you can talk about in cartoonish ways because she hasn’t done cartoonish performance.
S2: This goes to the difference between how Republicans and Democrats audition for the Supreme Court. Right. Something that we’ve written about in the past, Republicans. There’s now a huge pool of lower court judges who are all auditioning for the next vacancy and competing with each other. And so they are escalating and trying to prove that they are the most rabid and strident and vocal, hard right, doctrinaire, partisan, conservative out there. And you just don’t see that competition on the left, because the way that progressive jurists audition is to, like, do very little. They do their work, they keep their heads down, they write their opinions. CBJ has hundreds of them. Most of them are extremely boring, which is not her fault. That’s just the bread and butter of a federal district court judge. She hasn’t had that many opportunities to make a splash. And yes, she’s given a few very interesting speeches about, say, work life balance and the law firm life and her, you know, understandings of Clarence Thomas, which do give us a glimpse into her psyche and maybe her jurisprudence. But for the most part, she has just been an awe inspiring, technocratic, progressive jurist who like gets the job done without, again, a ton of fuss. And that is the kind of person who I think any Democratic president would dream of nominating, because the backlash is inevitably just not going to be that effective. It’s going to be limited. There’s not enough fodder out there to really take her nomination. So we’re just going to see, I think, a rehash of her appeals court hearing, a bit of a rehash of her district court hearing, and that’ll be that. And the fireworks will be pretty limited.
S1: I completely concur. There has not been and we’re taping this on Friday right before the hearing, a really coherent opposition to her. Let’s talk about some of the pieces of it. And as you say, some of it we can just pull from. We heard this at her prior confirmation hearings. So one piece is the always effective Guantanamo, as though Americans still are riled that occasionally lawyers wrote briefs on behalf of Gitmo detainees. So that’s one strand you’re rolling your eyes on the zoom, so why don’t you go ahead.
S1: Stick your things into that one?
S2: If you walk with me way back to 2016, when Obama was considering nominating Jane Kelley to the Scalia seat, the conservative judicial lobbying groups put out attack ads that laid into Jane Kelley 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 I think 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. 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 CBJ did and did so quite admirably. But just to get it off the plate, you know, yes, she represented Guantanamo detainees. That I think is one of the best and noblest uses of a law degree. 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, the Sixth Amendment that they claim to love so much. And 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 listen to a nominee for enforcing the Constitution and standing by it for those who are most in need of its protections. And I think that’s like all I have to say about that.
S1: Well, I will see. You’re cynical and stupid. And you. Mitch McConnell, Senate minority leader. Let’s have a listen to Mitch McConnell, who thinks she’s eminently qualified.
S3: But curiously, the same radicals who want to turn Democrats into the party of record pocketing also badly wanted Judge Jackson for this vacancy. It’s a matter of record that this nominee was anointed favorite of these fringe groups at this time last year. They were artists spending dark money to raise her profile. So I intend to explore what groups that are waging political war against the court as an institution and decided Judge Jackson was their special favorite.
S1: Okay, so, Mark, here we have it. 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.
S2: I mean, I don’t see the the flaw in that logic. I think we just got to go with Mitch here and say thank you next. We call this also guilt by association. We have a lot of names for this. But 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, try to use this very weak tactic to smear someone, to say, oh, 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 connections with any of them or professional connections, but they like her, so she must be bad. That has never been a benchmark for a judicial nominee is 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. 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 like write for the Hill and are chronically on Twitter. And those people are not going to matter very much for this confirmation.
S1: I guess this brings us tragically to Senator Josh Hawley. You may remember him from his last role in I Support the January six Insurrectionists. But now he’s really worried because he thinks, I guess, and this really is to the extent, I guess there is a real response coalescing. And by that I mean, I guess it’s Mike Lee and Josh Hawley now have devised their attack plan will be that she likes child predators or that she singles out child sex offenders for the latest 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.
S2: 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 will understand that like plucking a handful of cases out of hundreds that a district court judge has overseen, plucking a handful of sentences tells you nothing about their actual record. Like, you can always find outliers. And I think we need to do a brief bit of background here for people who aren’t aware of like how federal sentencing works. Because what Hawley is doing is really exploiting ignorance and misunderstandings of how sentencing functions to make it seem like CBJ was really outside the norm when 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. And yeah, the judge is going to literally take out this chart and like tick off the little different pieces that the Sentencing Commission has said you should consider and say, okay, this plunks you within the range of just making this up 25 months to 40 months. I think there were sufficient number of mitigating factors that I’m going to put you on the lower range of 25 months, or a judge is perfectly 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 and 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. And maybe, you know, 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 suggest for someone who has been convicted of child pornography, not producing child pornography, but possessing child pornography, not reading it or sharing it, and really broad networks, but just having it. They got caught possessing child pornography. And 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. And he took a look at these cases. And in a majority of these cases that Josh Hawley is freaking out about, where Jackson issued ostensibly 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, you know, 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, are 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, 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 the. Or even share it. And so one of these cases that Holly 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 nonviolent crime, would be considered barbaric. And the fact that Jackson was willing to go that high shows that she is certainly within the norm of 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 that she has a good head on her shoulders and she realizes the discretion and nuance that is required for each individual act of sentencing. So I think if you take a one look at this with a little bit of background, it all falls apart. Josh Holly’s entire line of attack falls apart immediately. But because people just generally don’t understand how sentencing guidelines work, which is fine, 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 is doing or she did when she was on the district court, what hundreds of other judges appointed by every president have done like forever. So I really hope, in a kind of perverse way, that Holly does bring this up so that she can just, like, completely destroy his line of attack because she knows everything that I just said, obviously. And I’m sure she is prepared to answer this question very well.
S1: I’m so glad that you said all that. There’s a part of me that says, Write that piece, Mark. But I do think that it’s really important to understand that you can’t enter this discussion unless you have at least some backgrounding in the federal guidelines and the roiling, roiling dispute over how harsh they are. Yes, the continued understanding of every sentient judge that they are very harsh. And that is the reason. There’s a great tweet thread by Rachel Barkow essentially just saying less than 30% of all of these cases get a sentence that is recommended by the guidelines because everybody just understands what you just explained. And I think this is another one of those issues that is both kind of too inside baseball to explain. But it is such a distortion of her record to fail to explain it. So let’s see what happens. Before we finish, Mark, I do want to say, you know, I used to say because I’m old, that these hearings were a really good opportunity to have a teachable national moment about judicial theories of interpretation. In fact, I’ve probably written this piece when I was a whippersnapper. This is a really unique opportunity for the American public to hear about different theories of what judges do. And for years and years, I complained, and I know you have since picked up the baton and complained that this varied, two dimensional shallow. Oh, you know what conservative judges do is originalism or is humility or is calling balls and strikes. And what liberal judges do is naked dancing under the trees with the Druids. That’s been the story that’s been told in some sense by both sides for many years. And I remember also being extremely grumpy, I think maybe during the Sam Alito hearings that the best that the Senate Democrats could do to push back against minimalism and originalism and strict constructionism was Judge Alito. Do you have a good heart? Because cardiac theory of judging is also not a particularly compelling one. So I guess I want to ask you this question, because it is very clear that notwithstanding Josh Hawley and Tom Cotton and Mike Lee, who I guess are going to go after Judge Jackson for being soft on crime. Parenthetically, massive police endorsement for this judge.
S2: Fraternal Order of the Police endorsed.
S1: You know, it’s incredible. They love her so hard, but okay. Bracketed all that. I think I want to say for the Republicans who are choosing not to. Do you love child predators, Judge Jackson? What do we do with the full back, which is going to be, are you an originalist? Why aren’t you an originalist? Isn’t originalism awesome? Isn’t anyone who is an originalist essentially making crap up as they go along? This could be a teachable moment both for Judge Jackson and Democrats on the committee who might be able, I don’t know, to say something coherent about what progressive judges do that isn’t originalism. But I no longer have really super high hopes that that conversation is going to happen. I guess this is my very frustrated two decades in the making. Question to you. And it goes like this. If there were to be a meaningful conversation about what the conservative legal movement thinks, originalism or original public meaning or original intent or any of those doctrines are, or a conversation about what progressive jurists do in lieu of that. What might that look like in your mind? Or should we just fling up our hands and say it’s all pointless because this is a conversation that’s been pointless for many decades?
S2: This is not going to be a teachable moment here because to teach all that you just said so sagely, by the way, requires laying out why the other side is not honestly representing their own methodology is right. So you have to get into these cases where putative originalists and textualist reject or misread the original public meaning of the Constitution or the text of a statute in order to reach their desired outcome based on ideology or, dare I say, partisanship. And it’s really easy to do that. And we’ve done it on this show and we’ve done the articles. But, you know, if you’re Ketanji Brown Jackson, you don’t want to be sitting there smearing your. Are future colleagues. You don’t want to explain why what Alito and the conservatives did in the Jana’s case, hobbling public sector unions does not remotely approach the original public meaning of the First Amendment, and in fact, defies what real First Amendment scholars agree was the purpose and meaning and intent of the free speech clause. You don’t want to get into the mandatory arbitration cases where the conservative justices completely override the text of the statute of this 1925 law and impose their own policy preferences on millions of workers and consumers in this country. You don’t want to explain why your future colleagues are hacks, so you’re stuck only making the argument for the other side, for liberal jurisprudence, which, as we have said so many times, does not have the elevator pitch, it does not have the catchy name, it does not have the slogans. And so you have to start talking about the toolkit. This is what I think a lot of liberal judges do now. They say, well, originalism is one great tool in the toolkit. So is textualism. We can also look at the broader purpose of a law. Sometimes we can look at committee reports, legislative history, very controversial, but in some circumstances it can be helpful. You know, we look at precedent. We use stare decisis to guide us. Who the hell wants to hear that? I am putting.
S1: Myself to.
S1: Riveting. More riveting material.
S2: I mean, that’s the truth, right? I wish we could just say Kagan ism, because I actually think that Elena Kagan has put forth a very compelling and coherent methodology in her opinions over the last decade. I think if you read how she approaches both constitutional interpretation and statutory interpretation, she’s super superduper consistent. She is straightforward without being too rigid or excluding or ignoring counterarguments, which a lot of the conservatives do. She’s like a very fair minded jurist, but it takes hours to explain that. Like, I would have to do an entire podcast series on these boring opinions that no one cares about, that get to the heart of her true jurisprudence. And so instead we’re just talking about, Well, why don’t you apply, the law is written, why won’t you call yourself a textualist? And so it’s just going to be the same feudal response about how, you know, judges have to do a lot more than just be robots, be input output machines. There’s not always a direct and certain answer. And, you know, I think that she’ll handle it well because she’s done so two times in the past. But I don’t think it’ll be teachable for the rest of America because it’s just impossible for her to say anything especially enlightening or profound without opening herself up to vulnerability and more attacks.
S1: First of all, super sorry for the Ernie Bert style snoring. While you can be forewarned that I did that, I think at Justice Breyer one time, like I just when they start talking about the toolkit and pulling out the oh, well, blah, blah, blah, no, no, have an elevator pitch. I think the last thing I want to suggest is that one thing that Judge Jackson has done, I actually think really deftly at her prior confirmation, I mean, this is not her first rodeo. It’s not her second rodeo. She has done this. And I think really well is that she describes how she judges very, very eloquently.
S4: When I get a case, if you look at my 550 cases, you’ll see that there’s a consistency in the way in which I’m analyzing the issues. I am applying a particular method, as the Supreme Court has directed, which is that I’m looking only at the arguments that the parties have made, at the facts in the record of the case and the law, as I understand it, and I’m sticking very closely to those three inputs, and I’m also applying the same amount of analytical rigor to my analysis of those inputs. And as a result, I think I’m not making many errors, although the D.C. Circuit tells me that I do occasionally. But I’m doing that because I want to see every case through the same analytical lens. And it doesn’t make a difference whether or not the argument is coming from a deaf inmate or the president of the United States. I’m not injecting my personal views. I’m looking at those three things. And I think by being very methodical, I’ve been able to produce opinions that the circuit can see my reasoning, and they understand that I’m even handedly applying the law in every case.
S1: I mean, she really is very eloquent about how she tries to do justice. And in a sense, again, it defies the very clever but shallow umpire analogies. You know, she doesn’t. Pretend it’s easy. But she really does, I think, try to say, look, I try to be a really good judge. I try to apply the law. I try to explain myself really well. So I maybe am somewhat less hopeless than you are that maybe some of this resonates with the American people, that maybe the American people look around and say, Oh, right, that kind of sounds like what a biblical judge would do, right? That sounds like judging as opposed to I just think this very, very fatuous. Oh, it’s really simple. I just plug it into my oracular founders, a Ouija board and come out with an answer, which, again, sounds very, very, very minimalist and humble. But I just think maybe, maybe, maybe the public is too smart to get pantsed by that kind of fatuous ness again. I could be wrong.
S2: Maybe if she comes up with, like, an acronym for her process, she’s like, J just be yourself. You understand both sides. D. Defendant First, I haven’t gotten further, but like she she could do that. And I think you could make it like in like an acrostic poem, you know, and you can like put it up in courtrooms and maybe that would draw people in. But if it’s just going to be the the two and a half minute speech about how she approaches every case, you know, that warms my heart. Like I could listen to that on repeat in front of a nice warm fire drinking a hot toddy. I doubt that that goes for most of the public, but I would love to be proved wrong.
S1: Slate plus where we workshop PR campaigns for judging but only get through the letter D. Mark Joseph Stern. You are as always a treat to talk to. It will be fun watching next week with you and I. You know, hope springs eternal, but it could be. GROSS But there’s nobody I would rather watch gross with than you.
S2: Same to you. Let’s get GROSS together, Dahlia.
S1: JD And that is a wrap for this episode of Amicus, the Judd Edition. Thank you so much for listening in and thank you so much for your letters and your questions, your emails. You can always keep in touch with us at Amicus at Slate.com, or you can find us at Facebook.com slash Amicus podcast. Today’s show was produced by Sara Burningham. Felicia montgomery is executive producer and June Thomas is senior managing producer of Sleep Podcasts. We will be back with another episode of Panics in one short week. Until then, hang on in there.