Ketanji Brown Jackson's confirmation hearing: Day 3

Judge Ketanji Brown Jackson told Texas GOP Sen. Ted Cruz that if confirmed to the Supreme Court, she plans to recuse from a lawsuit against Harvard over its affirmative action policies the justices are hearing next term.

"That is my plan, senator," Jackson said.

Cruz brought up the case, noting he and the judge are both alums of the university. She is also on its board of overseers, as Cruz noted he asked if she intends to recuse from the case if confirmed.

The Harvard case is one of two affirmative cases the Supreme Court is hearing next term. The second case is a challenge to the University of North Carolina's affirmative action program. Jackson did not comment on that case.

As things stand, the Supreme Court consolidated the two cases concerning policies at Harvard and the University of North Carolina. But the court could now decouple the cases so that, if confirmed, Jackson could weigh in on the issue through the North Carolina dispute. 

High court conservatives have increasingly cast aside decades-old decisions, and their acceptance of the appeals immediately throws in doubt precedents from 1978 and 2003 that let colleges consider students' race to enhance campus diversity and the educational experience, CNN's Joan Biskupic wrote earlier this year. Lower federal courts had sided with Harvard and the University of North Carolina.

The ethics concerns about Jackson's potential participation in the Harvard case centered specifically on her presence on its board – and not because she attended the university as both an undergraduate and law student. Three of the justices Jackson will join if confirmed – Chief Justice John Roberts, Justice Elena Kagan and Justice Neil Gorsuch — attended Harvard Law, as did Justice Stephen Breyer, whom Jackson as been selected to replace.

Jackson's presence on Harvard's board may have given her a view into the discovery and litigation strategy in the case, as attorney and former Justice Department spokesperson Sarah Isgur noted on Twitter.

Nevertheless, some experts on legal ethics did not believe that Jackson had to recuse herself from the Harvard case depending on her involvement on the board. 

“Unless she took a position on the Harvard policy as a member of the Board or in support of candidates for admission, she would not be recused” Stephen Gillers of NYU School of Law told CNN last month. “ Merely having been a member of the Board is not enough to require recusal,” he said. 

For more on the cases, read here.

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GOP Sen. Lindsey Graham tried to explain why he voted for Judge Ketanji Brown Jackson to serve on the DC Circuit Court — but is signaling he will vote against her this time. At Wednesday's hearing, he railed on her sentencing of child pornography offenders and even criticized her as an "activist" for being overturned on an immigration ruling while serving as a district judge — all topics that he could have known about when she was up for a job at the DC Circuit.

CNN caught up with Graham, and asked him why he's changed his approach.

He added that the potential nominee that he pushed, district court judge Michelle Childs, "could have gotten her a lot of votes. I think this is going to be really hard for Judge Brown."

Graham also said that "this whole sentencing, how she views sentencing guidelines is problematic for me."

The Senate Judiciary Committee hearing has resumed.

The following senators are expected to question Supreme Court nominee Judge Ketanji Brown Jackson next in this order:

More on today's timing: Senate Judiciary Committee Chairman Dick Durbin says he expects today’s questioning to end around 7 p.m. ET if the amount of senators who are still in line to question Jackson use their allotted 20 minutes to question the judge. 

This time frame could shift in either direction if senators yield back some of their time or if additional breaks are added.

The actions of the Supreme Court on Wednesday immediately reverberated at the Ketanji Brown Jackson confirmation hearing, when Democratic Sen. Amy Klobuchar lamented the use of the so-called shadow docket for another important decision.

The court rejected a GOP request that it upend a Wisconsin congressional map adopted by the state supreme court that was preferred by Democrats. It also issued an order in a separate Wisconsin redistricting case that blocked a state legislative map adopted by the state supreme court that was backed by Democrats.

Klobuchar, a Minnesota Democrat, noted the dissent from two of the court's liberals: Justices Sonia Sotomayor and Elena Kagan.

"She noted that in an emergency posture, the court summarily overturns a Wisconsin Supreme Court decision resolving a conflict over the state's redistricting, a decision that was rendered after a five-month process involving all interested stakeholders, based on an obligation that is, these are her words, hazy at best even though summary reversals are generally reserved for decisions in violation of settled law," Klobuchar said of the Sotomayor-written dissent.

"(T)his underscores the point that I made yesterday that the courts' increasing practice of using the shadow docket to decide cases that have grave consequences for our democracy, including the right to vote that you and many other nominees have said is fundamental is incredibly troubling," Klobuchar said.

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The temperature of the confirmation hearings was raised significantly with a series of questions by Sen. Lindsey Graham that culminated in him repeatedly interrupting Judge Ketanji Brown Jackson attempts to explain her legal approach. 

Jackson's comments laying out why she viewed as outdated certain aspects sentence guidelines for child porn cases prompted in a particularly heated interjection by Graham, a Republican from South Carolina.

“On the internet, with one click, you can receive, you can distribute tens of thousands. You can be doing this for 15 minutes, and all of a sudden, you are looking at 30, 40, 50 years in prison,” Jackson said. 

“Good, good!” Graham jumped into exclaim, as she tried to continue to explain why many judges view that approach as problematic. 

“I hope you go to jail for 50 years. If you're on the internet trolling for images of children and sexual exploitation. So — so you don’t think that’s a bad thing, I think that’s a horrible thing,” Graham said, before Chairman Dick Durbin stepped in. 

“That’s not what the witness said and she should be allowed to answer this question once and for all, senator,” Durbin said. 

Graham stormed out of the hearing room at the end of back-and-forth, and declined to comment to CNN about the testy back-and-forth. 

Sen. Patrick Leahy, a Vermont Democrat and a fellow committee member, told reporters Graham’s questioning of her was “beyond the pale.” 

Even before Graham turned his questioning to the touch subject of child abuse imagery offense, Democrats were bristling at his refusal to let Jackson finish answers.  

During a discussion of her trial court ruling – later overturned by DC’s appellate court — in a case dealing with a Trump administration immigration policy, Graham accused her of judicial activism. 

“This is an example to me, and you may not agree, where the plain language of the statute was completely wiped out by you,” Graham said. When Jackson tried to explain her rationale in that decision, Graham interrupted her repeatedly, telling her legal argument in the case “fell on deaf ears” and that “I've got other things I want to talk about.” 

Those other things included Justice Brett Kavanaugh’s confirmation proceedings, which Republicans have raised on several occasions during Jackson’s hearing to complain about how Democrats treated him 

Jackson wasn’t following a Graham hypothetical that referred to how accusations against Kavanaugh came out then. Even as Durbin pointed out his time had expired and that she had nothing to do with those proceedings, Graham charged through the question, asking Jackson how she would feel if what happened to Kavanaugh happened to her. 

"I’m asking her about she may feel about what y’all did!” Graham huffed at Durbin. 

Jackson said she had no comment on the Kavanaugh proceedings, but wanted to answer earlier Graham questions about her child porn sentencing record, leading to the exchange about her view of the guidelines. 

“I think the best way you deter crime when it comes to child pornography is you lower the boom on anybody who goes onto the internet and pulls out these images for their pleasure,” Graham told Jackson, who argued that, in addition to imprisonment, she ordered lengthy supervision and limits on computer use. 

“And all I can say is that your view of how to deter child pornography is not my view. I think you're doing it wrong and every judge who does what you're doing is making it easier for the children to be exploited,” Graham said. 

Late in the hearing on Tuesday, Republican Sen. Marsha Blackburn of Tennessee claimed that Supreme Court nominee Ketanji Brown Jackson had disparaged women who oppose abortion. Blackburn, however, was twisting the contents of a legal brief Jackson co-authored in 2001. 

Blackburn claimed that, when Jackson was in private practice, “You made your views on pro-life, and the pro-life movement, very clear. And in fact, you attacked pro-life women. And this was in a brief that you wrote. You described them, and I’m quoting: ‘Hostile, noisy crowd of in-your-face protesters.’ And you advocated against these women’s First Amendment right to express their sincerely held views regarding the sanctity of each individual life.”

Shortly afterward, Blackburn, who described herself as “a pro-life woman,” said she finds it “incredibly concerning” that a nominee to be a lifetime Supreme Court justice has “such a hostile view” toward pro-life sentiment. And Blackburn asked Jackson if she thinks of pro-life women at church, or even Blackburn herself, as noisy, hostile and in-your-face. 

Facts First: Blackburn mischaracterized what this 2001 legal brief said. It did not broadly describe pro-life women as hostile, noisy or in-your-face. Rather, Jackson and her co-authors used the phrase “hostile, noisy crowd of ‘in-your-face’ protesters” specifically to describe pro-life activists who confront patients outside reproductive health clinics. The brief was written on behalf of clients who operated and supported these clinics.

The Massachusetts case was about “buffer zones” outside clinics, areas in which pro-life protesters would be prohibited from approaching patients. The brief Jackson co-authored as a young associate — along with partners at her firm – said this:

So “hostile, noisy crowd of ‘in-your-face’ protesters” was clearly not a general description of Americans who oppose abortion. 

Jackson explained to Blackburn on Tuesday that the case was about buffer zones and that she had used this language on behalf of clients.

“Senator,” she said, “I drafted a brief along with the partners in my law firm, who reviewed it, and we filed it on behalf of our client, in — to advance our clients’ arguments that they wanted to make in the case.”

Senate Majority Leader Chuck Schumer is attending Supreme Court nominee Judge Ketanji Brown Jackson's hearing in the Senate Judiciary Committee.

He is not expected to speak, but has taken a seat in the room (two rows behind the nominee) to observe. 

Schumer on Monday said that he remains confident “the Senate is on track to confirm Judge Jackson as the 116th Justice of the Supreme Court by the end of this work period," which is early April.

Yesterday, Schumer called some of his Republican colleagues “respectful” in their questioning of Jackson but told reporters that others have attacked her unfairly.

CNN's Ariane De Vogue tweeted a photo:

CNN's Lauren Fox contributed reporting to this post.

Senate Minority Leader Mitch McConnell sharply criticized the testimony of Judge Ketanji Brown Jackson at her Supreme Court confirmation hearing, saying she was evasive on issues like court packing and her judicial philosophy and that she struggled to explain what he claimed were lenient sentences she handed down to people convicted in child pornography and drug distribution cases.  

It is highly unlikely the Senate's Republican leader would support President Biden's nominee, though he has not said so publicly.

“Judge Jackson's responses have been evasive and unclear. She's declined to address critically important questions and ameliorate real concerns. First and foremost is a simple question of court packing,” McConnell said, adding that progressive groups that support Jackson’s nomination also support expanding the court.

“The nominee made sure to quietly signal openness, openness to the radicals’ position. She told senators, she could see both sides of the court packing debate.”

On Tuesday, Jackson, just as Justice Amy Coney Barrett did during her confirmation hearing in 2020, declined to comment on the idea of court packing, or adding justices to the Supreme Court beyond the current nine, saying that's a question for Congress to consider.

Read more about McConnell's standing in the GOP here:

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As Judge Ketanji Brown Jackson's hearings continue Wednesday, news from across the street at the Supreme Court, where Justice Clarence Thomas missed a third day of oral arguments.

Thomas entered Sibley Memorial Hospital in Washington, DC, Friday after experiencing flu-like symptoms and has been treated for what a court spokesperson described as an infection.

The court announced Thomas' hospitalization on Sunday and has declined repeated requests for updates on his health since then. When asked Wednesday about his status, Patricia McCabe, the court's public information officer, said: "No update."

Chief Justice John Roberts said in open court on Wednesday, as he has done since the beginning of the week, that Thomas would read briefs and transcripts of oral arguments.

All nine justices are fully vaccinated and boosted against Covid-19.