GOP senators air grievances of nominations past on first day of questions for Ketanji Brown Jackson

Nominee bats back questions about Critical Race Theory from one of her former colleagues on the Harvard Law Review – Texas Senator Ted Cruz

Andrew Feinberg
Washington DC
Tuesday 22 March 2022 21:31
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Senator Lindsey Graham storms out of Ketanji Brown Jackson hearing following Guantanamo rant

Republicans on the Senate Judiciary Committee used the first of three rounds of questioning with Supreme Court nominee Ketanji Brown Jackson to relitigate grievances of nominations past or advance mischaracterisations of her record in ways that cast her as an activist who is soft on sex offenders or a proponent of anti-white racism.

The GOP line of attack on Ms Jackson as a paedophile sympathiser was previewed on Monday by Missouri senator Josh Hawley, who in his opening statement accused her of handing down “lenient” sentences for child sex abuse imagery defendants against the wishes of prosecutors.

While numerous media outlets, including the conservative magazine National Review, have debunked Mr Hawley’s claims — allegations meant to stir up GOP-aligned adherents to the QAnon conspiracy theory — Republican senators nonetheless revisited the accusations during the day-long hearing.

Even one of Ms Jackson’s former colleagues on the Harvard Law Review, Texas senator Ted Cruz, got in on the act when he took his turn to question her Tuesday afternoon.

Mr Cruz took issue with a “note” — an academic study published in Harvard Law Review — which Ms Jackson authored during her time as a law student.

Ms Jackson’s work, titled “Prevention Versus Punishment: Towards a Principled Distinction in the Restraint of Released Sex Offenders,” dealt with whether laws which require sex offenders to register with authorities upon release from prison or allow authorities to use civil comment laws to hold offenders in custody after their prison terms are up.

When it was published in the early 1990s, such laws were relatively new and their constitutionality — now long-settled law — was an open question.

But Mr Cruz sought to characterise her student work as evidence of a pattern of sympathy for paedophiles by linking it to how she has applied US sentencing guidelines to child pornography defendants.

“You say requirements that sex offenders register, may or may not be unconstitutional, depending upon whether, quote, sex, in which sex offenders have no privacy, right and registration information or blood samples that you suggest that may or may not be constitutional? You raise doubts about it and then you raise very significant doubts about community notification. And you heavily suggest that civil commitment for sexual predators is unconstitutional. Do you still agree with the sentiments you expressed in your law school note?” said Mr Cruz, who like Ms Jackson graduated from law school more than two decades ago.

Ms Jackson explained that he was misrepresenting her “sentiments”.

“My note, which came out in 1996, was shortly after there were new Megan’s laws, and the point that I was making was not that the laws were bad or that the laws were wrong,” she said. “I was trying to assess something that is sort of fundamental in terms of the characterisation of the laws. I didn’t say that they were unconstitutional one way or the other. What I was trying to assess was how they are characterised”.

Continuing, Mr Cruz turned to Ms Jackson’s time on the US Sentencing Commission by asking her about a quote in which, in his telling, she suggested that some child sex abuse imagery defendants were “less serious” because of the type of conduct they engaged in during the commission of their crimes.

“I find that a pretty remarkable argument, that people in possession of child pornography, are not actually interested in the child porn, they’re not paedophiles, they’re just interested in technology — I wanted to provide the whole quote because the White House said that portions of this were used out of context — do you agree with that sentiment that there is some meaningful population of people who have child pornography but are not in fact paedophiles?” he asked.

In response, Ms Jackson pointed out that Mr Cruz had provided the entire quote without context, and was not a statement she had made but was in fact a question she had asked a witness.

The Texas Republican also took aim at Ms Jackson’s service on the board of Georgetown Day School, a progressive private school in the Washington, DC area.

Noting that Democrats had questioned Justice Amy Coney Barrett’s service on the board of a Catholic school which barred children with parents in same-sex relationships, Mr Cruz asked about Georgetown Day’s use of a book by author Ibram X Kendi, Antiracist Baby.

Calling the book “quite remarkable,” he noted that the book is used by Georgetown Day in the curriculum for pre-kindergarten through second grade before asking: “Do you agree with this book that is being taught … that babies are racist?”

Mr Cruz’s line of questioning was meant to undermine Ms Jackson’s answer to a previous question in which she said she did not believe Critical Race Theory — an academic discipline which originated at Harvard Law School — was taught in K-12 schools in the US.

Republicans have seized on the term to describe any attempt to address racial disparities in education or to teach historical subjects which touch on racism in America’s past. And though opposition research materials distributed to reporters by Senate Minority Leader Mitch McConnell’s office did not mention her service on Georgetown Day’s board, they did cast her as a proponent of CRT.

Ms Jackson told Mr Cruz she does not believe “any child should be made to feel as though they’re racist,” and explained that her answer to his prior question dealt with public schools.

When pressed further on whether she agreed that CRT is taught at Georgetown Day, she replied that she does not know if it is because the board on which she serves has no control over the curriculum.

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