Senators grill Jackson over record on third day of confirmation hearing

The Senate Judiciary Democrats held a press conference after the hearing ended, repeating their praise for Jackson. Judiciary Committee chair Dick Durbin confirmed the committee will vote on Jackson on April 4.

"She will be confirmed and she will be a star on the Supreme Court," said Sen. Pat Leahy of Vermont. 

The Democrats also reiterated that they will not release pre-sentencing reports, which are prepared by a defendants' probation officer and given to a judge before sentencing, from roughly seven cases involving child predators that Jackson ruled on. Republicans have brought up the cases and requested the documents during the confirmation hearings. 

Leahy, a former prosecutor, said "no prosecutor would want these records released," while Sen. Sheldon Whitehouse of Rhode Island, a former U.S. Attorney, called the GOP's questioning "a cynical and poisonous attack." 

Durbin also said he's spoken to some of the Republican senators who have second thoughts about signing the  letter sent by Republicans on the committee requesting the court records be unsealed. 

Republican Senator Marsha Blackburn concluded the final day of questioning Wednesday, pressing Jackson on many of the same issues as her GOP colleagues.  

Blackburn honed in on gun rights. Due to rising crime, more families are purchasing guns, the senator said. Blackburn asked Jackson to explain what current Supreme Court precedent says about the Second Amendment. 

Jackson said current precedent says the Second Amendment allows gun ownership in the home, as established in the case District of Columbia vs. Heller. 

Closing out the hearing, Durbin said most of his colleagues conducted themselves well — with some exceptions. Durbin told Jackson's daughters they are lucky to have her, and that the country will be lucky to have her on the court. 

The committee will privately consider Jackson's nomination on Monday. 

The third day of hearings concluded at 7:36 p.m. 

Senator Cory Booker, who is known for his impassioned speeches, said he looks at Jackson and starts getting "full of emotion."

Earlier that day, Booker said a woman practically tackled him while he was jogging to share her joy over Jackson's nomination. 

"This woman comes up on me, practically tackles me, an African American woman," he said. "And the look on her eyes, she just wanted to couch me because I'm sitting so close to you, and tell me what it meant to her to watch you sitting where you're sitting. And you did not get there because of some left-wing agenda. You didn't get here because of some dark money groups. You got here how every Black woman in American who has gotten anywhere has done, by being, like Ginger Roger said, 'I did everything Fred Astaire did but backward in heels.'"

Jackson wiped her eye as Booker spoke. 

Booker recalled when he was first elected to the Senate, only the fourth Black person ever to be so. When people come in at night to clean, the "percentage of minorities shifts a lot," Booker said. 

"I'm walking here, first week I'm here, and somebody who has been here for decades doing the urgent work of the Senate, but it's the unglamorous work that goes on no matter who's in office," Booker said. "A guy comes up to me and all he wants to say I can tell is, 'I'm so happy you're here.' But he comes up and he can't get the words out, and this man, my elder, starts crying. And I just hugged him and he just kept telling me, 'It is is so good to see you here, it is so good to see you here. Thank you, thank you, thank you.'"

Booker gave a nod to Republican Senator Tim Scott, saying he gave the best speech on race talking to the challenges and indignities minorities still face. Scott is the only Black Republican in the Senate. 

"I'm sorry, you're a person that is so much more than your race and gender," Booker said. "You're a Christian, you're a mom, you're an intellect, you love books. But for me, I'm sorry, it's hard for me not to look at you and not see my mom, not to see my cousins, one of them who had to come here and sit behind you. She had to have your back. I see my ancestors in yours. Nobody's going to steal the joy of that woman in the street, or the calls that I'm getting, or the texts. Nobody's gonna steal that joy."  

Senator Tom Cotton asked Jackson if America would be safe or less safe if Guantanamo Bay terrorists were released. Four cases were assigned to her when she was a defender. 

"Senator, I'm trying to figure out how to answer that question," she responded. "9/11 was a terrible attack on our country and the executive branch, pursuant to the authority that the Supreme Court said it had, designated people as enemy combatants and sent them to Guantanamo Bay."

Cotton pursued the question again, asking if America is safe or less safe with accused terrorists released. 

"Senator, America would be less safe if we don't have terrorists out running around, attacking this country, absoluteluy," Jackson responded. "America would also be more safe in a situation in which all of our constitutional rights are protected. This is the way our scheme works." 

Republicans requested access to pre-sentencing reports that are prepared by a defendants' probation officer and given to a judge before sentencing. The reports are filed under seal, as they contain highly sensitive information, including about victims. 

Sen. Ben Sasse of Nebraska is the only Republican on the committee who did not sign on to the letter seeking the reports, James Wegmann, his spokesman, confirmed.

"Senator Cruz is raising an important process issue on document production; like Senator Sasse said at the outset of this hearing, he's going to continue to dive into Judge Jackson's judicial philosophy because, as an originalist, he believes judicial philosophy is the central issue of this nomination," Wegmann said.

Jackson, in defending her record, repeatedly told senators they did not have access to all the filings that informed her sentencing decisions.

The request prompted sparring between Republicans and Durbin, who said he opposed GOP members' request to see the pre-sentencing reports in the roughly seven cases they raised.

"The information contained in these reports is dangerous, dangerous to the victims, and to the innocent people who are mentioned in these reports and unnecessary at this point," Durbin said. "It's merely a fishing expedition in dangerous territory. Classified settings, redacted versions of the reports, this has never happened in the history of this committee."

Lee suggested senators review the reports in a classified setting and treat them as classified, or said they could do so with sensitive information redacted.

"Not one of us wants to endanger anyone or to render public information that is sensitive in nature. There are abundant ways around that," he said.

But Durbin rejected that suggestion and said the request from Republicans to access the reports is a "bridge too far."

"I am not going to be party to turning over this information and endangering the life of an innocent person for a political quest to find more information," he said. "We have exhausted this topic, we've done it over and over again."

Hawley again asked Jackson about the sentence she imposed on Wesley Hawkins, who was 18 years old when he was found to be in possession of nearly two dozen images and movie files containing child pornography. The federal government recommended Hawkins be incarcerated for 24 months, and in 2013, Jackson sentenced him to three months in prison followed by 73 months of supervised release.

"No one case can stand in for a judge's entire record. I have sentenced more than 100 people in a variety of egregious circumstances," she said. "In every case and especially cases that involve the kinds of acts that you're talking about, the kind of evidence that I had to deal with as a judge, in every case, I'm balancing the factors that Congress has determined are appropriate and required for a judge to make a determination."

Hawley pressed Jackson on whether she regretted her three-month sentence for Hawkins, whose case he questioned her about on Tuesday.

"What I regret is that in a hearing about my qualifications to be a justice on the Supreme Court, we've spent a lot of time focusing on this small subset of my sentences," she said.

Jackson noted that the seven cases Republicans have focused on are "very serious," though she said she has also imposed sentences of 25 to 30 years for offenders.

The judge also addressed claims about her sentencing record raised by Cruz and said the Texas senator's data points "don't account for all of the information that was before me as a judge and the authority that you all, Congress, and your prior confirmation when I was a district judge, provided for me to exercise my judgment."

Jackson reiterated that as a trial judge, she has a mandate from Congress under the law to impose a sentence that is "sufficient, but not greater than necessary," to promote the purposes of punishment.

"I have law enforcement in my family. I'm a mother who has daughters, who took these cases home with me at night because they are so graphic in terms of the kinds of images that you are describing," she said, adding that she is "fully aware of the seriousness of this offense, and also my obligation to take into account all of the various aspects of the crime as Congress has required me to do and I made a determination seriously in each case."

As Hawley continued to probe Jackson about her sentencing decisions in child pornography cases, she eventually conceded that, over the two days of questioning, she has repeatedly described in detail to senators how the sentencing guidelines work.

"I've explained that the guidelines were developed at a time in which the commission of this crime was different than it was today. I've explained that Congress has not intervened to revise or direct the commission around how to deal with the changes in the commission of this crime," she said. "So judges all over the country are grappling with how to apply this guideline under these circumstances, and there's an extreme amount of disparity."

Republican Sen. Ben Sasse took a moment to share his opinion on whether cameras should be in the Supreme Court. The court currently only live-streams audio of oral arguments, which it adopted during the pandemic.

Sasse said he understands his colleagues' arguments for transparency, but he believes a pen and pad can translate transparency "just fine." Sasse said whether to install cameras in the courtroom is something the Supreme Court should decide, not Congress. 

"A huge part of why this institution doesn't work well is because we have cameras everywhere," Sasse said of Congress. "Cameras change human behavior. We know this." 

"Instagram can be useful for some small things, but for intellectual discourse, it is not a friend," Sasse added. "And I think we should recognize that the jackassery we often see around here is partly because of people mugging for short-term camera opportunities." 

In response to a question from Sen. Ted Cruz about a case before the Supreme Court next term over Harvard's admissions policies, Jackson said she will recuse herself from the pending legal fight.

"You're on the Board of Overseers of Harvard. If you're confirmed, do you intend to recuse from this lawsuit?" Cruz asked. 

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

Jackson has served on Harvard's Board of Overseers since 2016 and has faced calls to recuse herself from the upcoming case the Supreme Court will hear in its next term, which begins in October, over Harvard's admissions policies and affirmative action at both private and public institutions.

A group of Asian American students who are members of the organization Students for Fair Admissions filed suit against Harvard in 2014, alleging its admissions policies violated Title VII of the Civil Rights Act and Harvard intentionally discriminates against Asian American applicants. The federal appeals court in Massachusetts upheld the school's admissions policies, and Students for Fair Admissions appealed the decision.

The Supreme Court agreed in January to review the case, as well as a second, similar dispute involving the University of North Carolina. 

GOP Sen. Mike Lee brought up late-term abortion, asking Jackson about a case that dealt with a Nebraska law that made the procedure illegal, unless it was necessary to save the life of the mother. The Supreme Court struck down the law at issue in the case, known as Stenberg v. Carhart. Jackson was a clerk for Justice Stephen Breyer at the time.

Breyer delivered the majority opinion, holding that the statute criminalizing the performance of late-term abortion violates the Constitution. The court narrowly struck down the statute in part because it didn't allow for exceptions in cases where the mother's health was threatened.

Lee asked for the difference between that case and another case, Gonzales v. Carhart, which upheld a federal law banning the procedure. Jackson said there "were distinctions" between the two, but Lee didn't press her further, turning next to expanding the number of justices on the court, known as court packing.

Jackson, again, reiterated that although she has personal opinions on issues, she's not comfortable weighing in on the subject. 

"The reason why in my view it is not appropriate for me to comment is because of my fidelity to the judicial role," she said. "I understand that it's a political question, and that is precisely why I think that I am uncomfortable speaking to it." 

Lee said he respected her independence but the matter does have an impact on what she would be doing, and her opinion would be valuable.

"The reason it concerns me so much is that even when court packing doesn't succeed legislatively, it can leave an impact," Lee said. 

Sen. John Cornyn, a Republican from Texas, asked Jackson a series of questions related to the Supreme Court's abortion jurisprudence and viability line, or the point at which a fetus can survive outside the womb.

In its 1973 decision in Roe v. Wade, and reaffirmed in the 1992 decision in Planned Parenthood v. Casey, the high court has said states cannot ban abortion before fetal viability, which is now considered to be between 22 and 24 weeks of pregnancy. 

Jackson told Cornyn that she hesitates to speculate as to the definition of viability and would not comment on whether the viability line is arbitrary, as there is a case currently pending before the Supreme Court concerning the issue.

"The Supreme Court has tests and standards that it's applied when it evaluates regulation of the right of a woman to terminate their pregnancy," Jackson said. "The court has announced that there is a right to terminate up to the point of viability subject to the framework in Roe and Casey, and there is a pending case right now that is addressing these issues."

She did tell Cornyn he is "correct" that the Constitution does not mention the word abortion.

The court heard arguments in December in a case involving a Mississippi law that prohibits abortions after 15 weeks of pregnancy, which conflicts directly with the Supreme Court's past decisions on abortion. A majority of the high court seemed inclined to allow the Mississippi law to stand, which would pave the way for states to curb abortion access.

While it's less clear whether the justices will overturn Roe and Casey — Mississippi officials asked the court to do so — pro-abortion rights groups have warned that a decision upholding the 15-week law would effectively discard the viability line and gut nearly 50 years of precedent.

Jackson also addressed religious freedom, calling it a "core, foundational constitutional right." 

"It's in the First Amendment of the Constitution and reflects the Founding Fathers' understanding of this country as being one that is based in large part on the idea of pluralism, the idea that people can come and have sincerely held religious beliefs and practice them without persecution," she said. "That's part of the foundation of our government."

The Supreme Court's 6-3 conservative majority has in recent cases been more sympathetic toward religious entities that have come before it.

Republican Sen. Lindsey Graham began his time by decrying the treatment of a conservative African-American judge whose nomination to a different court was filibustered by Democrats in the early 2000s, as well as the treatment of conservative female nominees generally. He particularly focused on the case of Janice Rogers Brown, lambasting Democrats for blocking her 2003 nomination to the D.C. Circuit Court of Appeals. Brown, who is Black, was eventually confirmed in 2005. 

"To my Democratic colleagues, if you're a person of color, a woman, supported by liberals, it's pretty easy sailing," Graham said. 

"You have nothing to do with that," Graham told Jackson. "I just make this observation." 

Graham went on to ask whether an unborn child can feel pain at 20 weeks, to which Jackson said she doesn't know. He continued to press Jackson on illegal immigration before turning to her handling of child pornography cases.

Graham said computers have created a higher demand for illicit images, and asked Jackson about how she approaches sentencing enhancements for people using computers to access illegal photos. Computers and the internet are "feeding the beast here," he said, urging longer sentences for computer-involved child porn cases.

"I want those people deterred," Graham said. "I hope you go to jail for 50 years if you're on the internet trolling for images of children and sexual exploitation."

While Jackson still has some hurdles to mount in the course of her confirmation process — crucially, the approval of the evenly divided Senate — Democratic Sen. Patrick Leahy of Vermont expressed little doubt she will be confirmed.

"You will, and you will become a member of the U.S. Supreme Court," he declared to Jackson.

Following the conclusion of the confirmation hearings before the Senate Judiciary Committee, the panel will vote on whether to report Jackson's nomination to the full Senate favorably. That vote will likely take place next week, as any committee member can request a nomination be held over for one week.

The panel is divided between 11 Democrats and 11 Republicans, and it's unclear at this point whether any GOP members will vote to advance Jackson's nomination. A tie vote, though, does not preclude her from proceeding to the full Senate for a vote.

While the Senate, too, is evenly divided, Jackson is expected to win support from the 48 Democrats and two independents who vote with the Democrats, with Vice President Kamala Harris casting a tie-breaking vote if no Republican senators vote to confirm her.

Touching on an issue that has in recent years grown in importance to Republicans, Grassley asked Jackson whether she believes nationwide injunctions — when judges block enforcement of a challenged policy nationwide — are constitutional.

During the Trump administration, the use of nationwide injunctions by federal district court judges came under scrutiny by Republicans and the Justice Department, as many of former President Donald Trump's policies were halted during litigation. GOP officials, though, have asked judges to issue nationwide injunctions in challenges to Mr. Biden's policies.

Jackson explained some of the orders she has issued involving measures implemented during the Trump administration are not, in fact, nationwide injunctions.

"In a particular set of cases, administrative agency cases that are brought under the Administrative Procedure Act, these are challenges to agency actions like agency rules that they have promulgated, and if the challenge is to the procedures that the agency undertook to create the rule, the statute that applies, the Administrative Procedure Act, tells the court that if you agree with the plaintiff that the agency rule is faulty procedurally, the remedy in the statute is to invalidate the rule," she explained. "That's what Congress tells judges to do."

The committee has begun its second round of questioning, with each senator getting 20 minutes to follow up. Durbin encouraged senators to be succinct and give back their time, after Tuesday's session lasted 13 hours. 

Durbin asked Jackson how Jackson reconciles what the Founding Fathers envisioned with the reality of the 21st century, and, for instance, falsehoods declared by a former president on social media.

These are the issues the Supreme Court wrestles with, Jackson said. It's a process of understanding the core foundational principles of the Constitution as captured by the text and as originally intended, and then applying those principles to the modern day, she said. 

Durbin said it's important to remember the challenges of interpreting the Constitution given modern technology. 

Sen. Thom Tillis, a Republican from North Carolina, asked Jackson about a friend-of-the-court brief she helped author on behalf of pro-abortion rights organizations and women's organizations while working as an associate at Goodwin Procter in Boston. 

The 2001 case before the 1st U.S. Circuit Court of Appeals involved a Massachusetts law that created a six-foot floating buffer zone around abortion clinics. Jackson co-authored the brief on behalf of more than a dozen organizations, including the Women's Bar Association of Massachusetts, Abortion Access Project of Massachusetts, Massachusetts NARAL and the League of Women Voters of Massachusetts. 

"Am I correct that part of the argument was because they were noisy, in-your-face protesters, they needed to be a little bit further away than people who were pro-choice advocates?" Tillis asked.

Jackson said the case at issue involved the First Amendment, and the organizations she and her colleagues represented "wanted to make an argument about buffer zones, which at that time had not yet been litigated all the way up to the Supreme Court." 

"Buffer zones that put pro-life and pro-choice people in the same buffer or ones that argued pro-life people were in your face and perhaps needed a bigger buffer than the pro-choice?" Tillis asked.

Jackson said the law was viewpoint neutral, and the groups believed the buffer zones were "constitutional and important."

"It wasn't about what the people were saying. It was about clearing a path to allow people to enter the clinic," she said. "The laws at that time were about how far do people have to be kept back, whether they were pro-life or pro-chooce."

Tillis, though, said the brief filed with the 1st Circuit "almost looked as if there was this notion that there was bad speech and good speech."

The 1st Circuit ultimately upheld the Massachusetts law, and the Supreme Court declined to review the decision.

Durbin reconvened the Judiciary Committee for the second day of questioning at 9:07 a.m. and delivered a short statement about the prior day's proceedings, during which he knocked some of his GOP colleagues for attempting to score political points ahead of the November midterm elections. 

"Much of what we heard from a handful of senators yesterday has to be put in context," Durbin said. "The overwhelming majority of senators on both sides I thought were asking appropriate questions and positive in their approach and respectful of the nominee before us. But for many senators, yesterday was an opportunity to showcase talking points for the November election."

On Republicans' attempts to paint Democrats and Jackson as "soft on crime," the Illinois senator said the judge has "made a mess of their stereotype."

He also rejected GOP senators' assertions that Jackson's sentences handed down in child pornography cases are outside the mainstream. 

"You are in the same place as 80% of federal judges when it comes to sentencing on child pornography cases, 80%," Durbin said. "And of course, Congress is not without fault. We have failed to pick up the responsibility that was assigned to us some 17 year ago when the Supreme Court decided that the basic guidelines would not be mandatory on judges. We should've stepped in at that point, but it's a tough, hard, controversial subject and we've stayed away from it."

Durbin said Jackson's nomination is a "testing ground for conspiracy theories and culture war theories."

"The more bizarre the charges against you and your family, the more I understand the social media scoreboard lit up yesterday," he said.

Durbin's comments prompted sparring with some Republicans on the panel who took issue with the chairman's efforts Tuesday to provide additional context about Jackson's record.

"I don't think it's appropriate for the chairman after every time someone on this side of the aisle asks questions of the judge, you come back and you denigrate and you attack and you criticize the line of questioning," GOP Sen. John Cornyn of Texas said. "I think the judge is doing a pretty good job of defending her own positions and answering questions."

Sen. Chuck Grassley of Iowa, the top Republican on the panel, did compliment Democrats for "using grace and dignity, unlike it was during the Kavanaugh hearings."

The Senate Judiciary Committee announced the list of people who will be appearing before the committee on Thursday, the final day of proceedings. The committee will hear from two panels: the first is composed of representatives from the American Bar Association and the second witnesses who will testify in favor of and against Jackson's nomination.

The American Bar Association, which evaluates the qualifications of all federal judicial nominees, unanimously rated Jackson well qualified to serve on the Supreme Court. 

The first panel includes witnesses from the American Bar Association's Standing Committee on the Federal Judiciary: 

• Ann Claire Williams

• D. Jean Veta

• Joseph Drayton

Democrats' witnesses for the second panel are: 

• Rep. Joyce Beatty, a Democrat from Ohio and chair of the Congressional Black Caucus 

• Risa Goluboff, dean of the University of Virginia School of Law

• Wade Henderson, president and CEO of the Leadership Conference on Civil and Human Rights 

• Richard Rosenthal, an appellate lawyer

• Captain Frederick Thomas, national president of the National Organization of Black Law Enforcement Executives

Republicans' witnesses for the second panel are:

• Steve Marshall, Alabama attorney general 

• Jennifer Mascott, assistant law professor at George Mason University

• Eleanor McCullen, who provided sidewalk counseling outside a Planned Parenthood facility in Boston

• Keisha Russell, a lawyer with First Liberty Institute

• Alessandra Serano, chief legal officer for international operations for Operation Underground Railroad

Wednesday's session will begin at 9 a.m. with Democratic Sen. Jon Ossoff and GOP Sen. Thom Tillis each given 30 minutes to pose questions, since neither got the opportunity on Tuesday.

The second round of questioning will then begin, with senators getting 20 minutes to pose follow-up questions to Jackson in order of seniority, alternating between parties. Here is the order in which senators will speak:

• Dick Durbin, Democrat of Illinois

• Chuck Grassley, Republican of Iowa

• Pat Leahy, Democrat of Vermont

• Lindsey Graham, Republican of South Carolina

• Dianne Feinstein, Democrat of California

• John Cornyn, Republican of Texas

• Sheldon Whitehouse, Democrat of Rhode Island

• Mike Lee, Republican of Utah

• Amy Klobuchar, Democrat of Minnesota

• Ted Cruz, Republican of Texas

• Chris Coons, Democrat of Delaware

• Ben Sasse, Republican of Nebraska

• Richard Blumenthal, Democrat of Connecticut

• Josh Hawley, Republican of Missouri

• Mazie Hirono, Democrat of Hawaii

• Tom Cotton, Republican of Arkansas

• Cory Booker, Democrat of New Jersey

• John Kennedy, Republican of Louisiana

• Alex Padilla, Democrat of California

• Thom Tillis, Republican of North Carolina

• Jon Ossoff, Democrat of Georgia

• Marsha Blackburn, Republican of Tennessee 

There will also be a portion of Wednesday's hearing conducted behind closed doors for senators to examine Jackson's FBI background check, a standard process for judicial nominees.

• What: Judge Ketanji Brown Jackson appears before the Senate Judiciary Committee for the third day of her Supreme Court confirmation hearings

• Date: Wednesday, March 23

• Time: 9 a.m. ET

• Location: U.S. Capitol in Washington, D.C.

• Online stream: Live on CBS News in the player above and on your mobile or streaming device.