Ketanji Brown Jackson's confirmation hearing: Day 2

GOP Sen. John Cornyn devoted several questions to the topic of the 2015 Supreme Court decision making same-sex marriage legal nationwide, with Cornyn arguing that the legal principle that provided the foundation of the ruling gives “judges carte blanche to do whatever they want.”

The comment came after he asked Judge Ketanji Brown Jackson several questions about substantive due process, the basis of the 2015 ruling known as Obergefell v. Hodges. The Texas Republican asked her how this concept was not "finding a new fundamental right” and a product of “court-made law.”

"It’s 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?” Cornyn said.

His focus on the question suggested that Republicans – who for years had seemed to have moved on from the 5-4 ruling – were interested in relitigating the opinion, which was authored by former Justice Anthony Kennedy.

Cornyn made several skeptical comments about the ruling, calling it a "dramatic pronouncement” that would “inevitably set in conflict between those who ascribe to the Supreme Court's edict and those who have a firmly held religious belief that marriage is between a man and a woman.”

GOP Sen. Lindsey Graham’s line of questioning suggested Democrats had asked now-Justice Amy Coney Barrett tough questions because of her religion and because she “went to church too much.” Graham similarly suggested that now-retired US appellate court Judge Janice Rogers Brown, who like Jackson is African American, stalled in the Senate because of her racial and family background.

There is a broader context to consider in both cases. As a law professor at the University of Notre Dame, Barrett had publicly expressed her deep Catholic faith and her opposition to reproductive rights. Senators who asked questions about Barrett’s personal and religious beliefs, sometimes awkwardly, said they were trying to determine whether those beliefs would affect her decisions, on such privacy issues as abortion. Barrett before becoming a judge had signed statements referring to Roe v. Wade’s “barbaric legacy” and calling for “the unborn to be protected in law.”

The Supreme Court is currently deciding whether to reverse Roe, and Barrett’s vote could be crucial to whether the 1973 landmark that made abortion legal nationwide is upheld or overturned.

Brown, whom Graham noted was a child of sharecroppers, indeed had a poignant personal story. The Democrats who blocked her nomination from 2003 into 2005, however, were focused on her conservative record from the California Supreme Court, particularly on civil rights issues. Democrats delayed consideration and a vote on Brown, nominated by then-President George W. Bush to the DC Circuit court on which Jackson now sits. That court has long been a stepping stone to the Supreme Court, and that raised the stakes as Democrats opposed Brown.

She was ultimately confirmed in 2005 but overlooked for two Supreme Court vacancies that came up that year.

Sen. Lindsey Graham, the only Republican member of the committee who voted for Ketanji Brown Jackson for the DC Circuit last year, told CNN it’s “fair to say” he sees red flags with her nomination in an interview after his first round of grilling the nominee.

He criticized her explanation of defending Guantanamo detainees as an attorney, which was the subject of a tense line of questions for Jackson.

“It just doesn’t make sense to me,” he told CNN.

Graham was one of three Republicans who voted to confirm Jackson for the DC Circuit on the Senate floor last year, and the only Republican on the committee who had supported her in that 2021 vote. But he has indicated he views the Supreme Court fight as a different matter.

"I don't understand how can she now disassociated herself from the argument she made," Graham told CNN, referring to a friend-of-the-court briefs Jackson issued, while in private practice, on behalf several organizations in support of the detainees.

At Tuesday's hearing, Graham told Jackson that the arguments made in the briefs put America in an “untenable position” and that she would have been “run out of town” if she tried to do this during World War II. Before questioning her about the briefs, he ran down examples of former Guantanamo Bay detainees who had joined the Taliban since their release.

Rebuking Graham, Jackson said that signing on to the brief did not make those arguments her arguments, as she called back to comments that Chief Justice John Roberts had made about lawyers’ representation of clients. “When you are an attorney, and you have clients who come to you – whether they or not – you represent their positions before the court,” Jackson said, an answer that did not apparently satisfy Graham.

Judge Ketanji Brown Jackson said that the two Supreme Court decisions that secured the right to abortion for women in America are "settled law" of the court.

Jackson went on to say that the two cases "established a framework that the court has reaffirmed and in order to revisit, as Justice Barrett said, the Supreme Court looks at various factors because stare decisis is a very important principle." 

She said that the concept of stare decisis "provides and establishes predictability, stability, it also serves as a restraint in this way on the exercise of judicial authority because the court looks at whether or not precedents are relied upon, whether they’re workable, in addition to whether or not they’re wrong."

However, it makes no difference what a nominee — liberal or conservative — says about the fact that Roe v. Wade is settled precedent. That’s because a Supreme Court justice, unlike a lower court judge, can vote to overturn precedent.

The court is expected to issue a major ruling this summer that could overturn Roe v. Wade and Planned Parenthood v. Casey, in a case involving a Mississippi law that bans abortion after 15 weeks of pregnancy.

GOP Sen. Lindsey Graham began his questioning of Judge Ketanji Brown Jackson by asking her what religious faith she subscribes to. She responded that she is a nondenominational protestant.

Judge Jackson told Graham that while her faith is very important to her, "as you know, there's no religious test in the Constitution under Article VI." 

"And it's very important to set aside one's personal views about things in the role of a judge," she said.

Graham continued, asking the judge "how faithful would you say you are?" She said that she was "reluctant" to talk about her faith because she believed it is important that when evaluating her qualifications the public can "separate out my personal views."

Judge Ketanji Brown Jackson was asked by Sen. Patrick Leahy, a Democrat from Vermont, about accusations that she is "soft on crime or even anti law enforcement" because she worked as a public defender during her career.

Jackson noted in her response that she has multiple family members who have worked as police officers. She said that her brother worked as a police officer in Baltimore, and has two uncles who had careers in law enforcement — one who became the Chief of Police of the City of Miami Police Department in the 1990s.

She said that crime, its effects on the community, and the need for law enforcement "are not abstract concepts or political slogans to me."

Jackson went on to say that as a lawyer and as a citizen, "I care deeply about our Constitution and the rights that make us free." 

"As you say, criminal defense lawyers perform a service and our system is exemplary throughout the world precisely because we ensure that people who are accused of crimes are treated fairly," she said to Leahy and the committee.

She said that it's important to her that people are "held accountable for committing crimes, but we have to do so fairly, under our Constitution." 

Read more about her record on crime here:

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How Ketanji Brown Jackson is preparing for questions about her record on crime

Judge Ketanji Brown Jackson said that the guidance that Congress has given courts for sentencing certain child porn offenders “appears to be not consistent with how these crimes are committed,” and therefore creating “extreme disparity” in the sentences that are being handed down.

Her comments marked the first time she weighed in on why judges are often deviating from the statutory sentencing guidelines in these cases. Jackson said that the current guidelines – which are created by statute but, under Supreme Court precedent, are not binding on judges – are now “leading to extreme disparities in the system."

“It is not doing the work of differentiating who is the more serious offender in the way that it used to,” Jackson said. Courts “are adjusting their sentences in order to account for the changed circumstances, but it says nothing about the courts’ view of the seriousness of this offense."

Ahead of her hearings, several former judges, lawyers and other legal experts have defended Jackson’s record on these cases. Republicans have also zeroed in on the work she did as a vice chair of the US Sentencing Commission, when it issued a 2012 report calling on Congress to revise the guidelines to realign the sentences based on the type of child porn offense and to lower the mandatory minimums of two categories of offenses. Those recommendations were issued unanimously by the commission, which included GOP appointees.

The courts’ “ultimate charge” from Congress “is to sentence in a way that is sufficient but not greater than necessary to promote the purposes of punishment,” Jackson said Tuesday.

Judge Ketanji Brown Jackson defended her advocacy for Guantanamo Bay detainees, a part of her record that Republicans have expressed skepticism over and are likely to question her about.

Jackson said there were lawyers who after 9/11 "recognized we couldn't let the terrorists win by changing who we were fundamentally" and that meant that those accused by the US government of having engaged in the September 11 attacks, under the Constitution, were entitled to representation and fair treatment.

"That's what makes our system the best in the world. That's what makes us exemplary," she added.

As an assistant federal public defender, Jackson represented a Guantanamo Bay detainee, Khi Ali Gul. She also for advocated for detainees in amici briefs in cases before the Supreme Court when she worked at the firm Morrison & Foerster.

Sen. Chuck Grassley brought up during his questioning of Judge Ketanji Brown Jackson that while speaking at an event at the University of Chicago law school in 2020, she quoted Martin Luther King, Jr.'s "I Have a Dream" speech, telling the audience how King said it was his hope that "the sons of former slaves and the sons of former slave owners would be able to sit down together at the table of brotherhood."

Grassley noted that Jackson went on to talk about how quickly things in the country then changed, "including the civil rights laws over the next few years because of civil rights movement," adding that Jackson said in this speech at the University of Chicago, "less than a decade after Dr. King's words, that was the world that you inhabited."

Grassley went on to ask Jackson if these quotes still reflect her views on this "very important topic" of civil rights today. She said yes.

She said that when she was born in 1970 and went to school in Miami, Florida, the city was "completely different." 

Jackson continued: "I went to a diverse public junior high school, high school, elementary school. And the fact that we had come that far was, to me, a testament to the hope and the promise of this country, the greatness of America, that we could go from racially segregated schools in Florida to have me sitting here as the first Floridian ever to be nominated to the Supreme Court So yes, senator, that is my belief."