Ketanji Brown Jackson confirmation hearings live updates: Day 2 of senator questions

(WASHINGTON) — Judge Ketanji Brown Jackson, the first Black woman nominated to the U.S. Supreme Court, faces another day of questions Wednesday after over 12 hours of grilling Tuesday on Day 2 of her four-day confirmation hearings before the Senate Judiciary Committee.

Here is how the news is developing Wednesday. Check back for updates.

Mar 23, 12:45 pm
Jackson defends child porn sentences, explains ‘rational’ system set by Congress

Sen. Lindsey Graham, R-S.C., assailed Judge Jackson over her sentencing of those child pornography defendants and alleged that she fell below the federal recommendation in some cases “because she doesn’t use the enhancements available to her.”

“Folks, what she is saying, the reason she’s always below the recommendation, I think, is because she doesn’t use the enhancements available to her. She takes them off the table. And I think that’s a big mistake, judge. I think that every federal judge out there should make it harder for somebody to go on a computer and view this filth,” Graham told her.

The government’s aforementioned sentencing guidelines, created before the internet was widely available, call for an enhancement on child porn offenses based on the number of images sent by mail were involved, meaning anyone who now is committing the crime online with ability to access or send many more images now gets an automatic stiffer punishment.

Jackson argued that’s unfair for those who use the mail because they get shorter sentences and would mean those who use a computer, even first time offenders, get longer sentences.

“Senator, all I’m trying to explain is that our sentencing system, the system that Congress has created, the system that the sentencing commission is the steward of, is a rational one. It’s a system that is designed to help judges do justice in these terrible circumstances by eliminating unwarranted disparities, by ensuring that the most serious defendants get the longest periods of time in prison,” she said. “What we are trying to do is be rational in our dealing with some of the most horrible kinds of behavior.”

Graham wouldn’t see her side and said he thinks Jackson sentences lower whenever a computer is involved.

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

After their lengthy exchange, Senate Judiciary Dick Durbin, D-Ill., who had to interrupt Graham several times to allow Jackson to finish, said the onus was on Congress to upgrade the sentencing guidelines, to which Graham agreed.

Notably, the sentences Graham is now taking issue with were on Jackson’s record when he voted last year to confirm her to the nation’s second-highest court.

-ABC News’ Trish Turner

Mar 23, 12:05 pm
Graham grills Jackson on undocumented immigrants voting, abortion

After airing his grievances over treatment of a different African American judicial nominee for a different post, Sen. Lindsey Graham, R-S.C., began his questioning Wednesday by firing off a barrage of policy questions and asking Judge Jackson whether she agreed with them.

His first question to the nominee: “Do you believe illegal immigrants should be allowed to vote, Judge Jackson?”

“Under our laws, you have to be a citizen of the United States in order to vote,” she replied.

“So the answer would be no?” he asked.

“It’s not consistent with our laws, so the answer is no,” she said.

“Okay,” Graham quipped. “Why don’t they do that in New York?”

“Senator, I’m not aware of the circumstances,” she said.

“Okay, all right, well that’s a good answer. The answer is no,” he said. “Can an unborn child feel pain at 20 weeks in the birthing process?

“Senator, I don’t know,” she said.

Graham asked another question on abortion, which she also said she didn’t know, before Graham added, “That may come before you one day, so just keep an open mind.”

Mar 23, 11:48 am
Jackson speaks to what type of justice she would be

Sen. Patrick Leahy, D-Vt., gave Judge Jackson the opportunity to address the American people directly on what kind of court justice she would be, “if and when confirmed.”

“What I would hope to bring to the Supreme Court is very similar to what 115 other justices have brought, which is their life experiences, their perspectives,” Jackson said. “And mine include being a trial judge, being an appellate judge, being a public defender, being a member of the sentencing commission, in addition to my being a Black woman, lucky inheritor of the civil rights dream.”

“And in my capacity as a justice, I would do what I’ve done for the past decade, which is to rule from a position of neutrality, to look carefully at the facts and the circumstances of every case, without any agendas, without any attempt to push the law in one direction or the other, to look only at the facts and the circumstances interpreting the law consistent with the Constitution and precedents, and to render rulings that I believe and that I hope that people would have confidence in,” she added.

Earlier, Leahy praised Jackson’s “transparency” and told her she “will become a member of the U.S. Supreme Court.”

-ABC News’ Trish Turner

Mar 23, 11:43 am
Senators debate whether Jackson called Bush, Rumsfeld ‘war criminals’

Beginning the second and final round of questioning, Senate Judiciary Chairman Dick Durbin, D-Ill., did not use all of his allotted 20-minutes as Democrats, pleased with Judge Jackson’s performance this week, appear on track to confirm Biden’s first Supreme Court nominee.

Durbin responded to the accusation — made by Sen. John Cornyn of Texas — that Jackson had called former President George W. Bush and former Secretary of State Donald Rumsfeld “war criminals” in a legal filing when, as a federal public defender, she represented Guantanamo Bay detainees. Cornyn complained that Durbin on Tuesday had “editorialized” about the filing in her favor after he left the room following his exchange with Jackson.

“Now I don’t understand the difference between calling someone a war criminal and accusing them of war crimes,” Cornyn said at the start of Wednesday’s session.

Later Wednesday, during his turn, Durbin noted Bush and Rumsfeld were named in the lawsuit for alleged torture crimes in their official capacity, said they were never specifically called “war criminals,” and asked Jackson if she’d like to respond.

Without directly addressing the exact language used in the filing and its implications, she reminded the committee that public defenders can’t choose their clients, “yet they have to provide vigorous advocacy. That’s the duty of a lawyer,” she said. “And as a judge now, I see the importance of having lawyers who make arguments, who make allegations.”

“In the context of a habeas petition, especially early in the process of the response to the horrible attacks of 9/11, lawyers were helping the courts to assess the permissible extent of executive authority by making arguments, and we were assigned as public defenders,” she added. “We had very little information because of the confidentiality, or the classified nature of a lot of the record, and as an appellate lawyer, it was my obligation to file habeas petitions on behalf of my clients.”

Mar 23, 10:45 am
Republican presses Jackson on prison release recommendations

Sen. Thom Tillis, R-N.C., questioned Judge Jackson about a case when she was considering a prisoner’s release due to the outbreak of the COVID-19 pandemic.

After reading a line taken out of context from an opinion where she declined the blanket release of inmates, Tillis asked Jackson if her “empathy” and “compassion” could lead her to release criminals.

Jackson noted Tillis was not reading her whole statement and that she decided not to release the defendant in that case. She added that she speaks directly to defendants for public safety and accountability.

“Congress also tells us that one of the purposes of punishment is rehabilitation. My attempts to communicate directly with defendants is about public safety,” she said. “It is to our entire benefit to ensure people who come out stop committing crimes.”

“You have to go away understanding that I am imposing consequences for your decision to engage in criminal behavior,” she added. “I was the one in my sentencing practices who explained those things in an interest of furthering Congress’s direction that we’re supposed to be sentencing people so that they can ultimately be rehabilitated to the benefit of society as a whole.”

Tillis replied that more than half of the people she sentenced have, “statistically speaking,” re-offended and “were back in prison.”

-ABC News’ Trish Turner

Mar 23, 10:09 am
Jackson addresses ruling that ‘presidents are not kings’

Addressing limitations on power, Sen. Jon Ossoff, D-Ga., raised a ruling by Judge Jackson for the D.C. Circuit Court in 2019, in which she determined that former Trump White House counsel Don McGahn had to comply with a congressional subpoena and wrote, “Presidents are not kings.”

He asked Jackson to explain that observation and what bulwarks in the Constitution protect against abuse of executive power.

“Our constitutional scheme, the design of our government, is erected to prevent tyranny,” Jackson said. “The framers decided after experiencing monarchy, tyranny, and the like, that they were going to create a government that would split the powers of a monarch in several different ways.”

She walked through the separation of powers and called them both “crucial to liberty” and “consistent” with her judicial methodology.

“It is what our country is founded on. And it’s important, as consistent with my judicial methodology, for each branch to operate within their own sphere. That means, for me, that judges can’t make law. Judges shouldn’t be policymakers. That’s a part of our constitutional design, and it prevents our government from being too powerful and encroaching on individual liberty,” she said.

Mar 23, 10:03 am
Jackson talks about family ties to public service

Sen. Jon Ossoff, D-Ga., allowed Judge Jackson the opportunity to speak again to her family’s ties to law enforcement and public service as some Republicans have attempted to paint her as “soft on crime” and taken issue with her record defending Guantanamo Bay detainees.

Jackson recalled how after her younger brother graduated from Howard University, he followed in the footsteps of her uncles and became a police officer in Baltimore. In the wake of the Sept. 11 attacks, he joined the Army and deployed twice, not as an officer, though he could have with his college degree, but on the frontlines.

“That’s the kind of person my brother is. That’s the kind of service that our family provides, and for me, what that meant was an understanding that to defend our country and its values, we also needed to make sure that when we responded as a country to the terrible attacks on 9/11, we were upholding our constitutional values — that we weren’t allowing the terrorists to win by changing who we are,” she said.

“And so I joined with many lawyers during that time who were helping the courts figure out the limits of executive authority consistent with what the framers have told us is important, the limitations on government,” Jackson continued. “I worked to protect our country. My brother worked on the front lines, and it was all because public service is important to us.”

Mar 23, 9:35 am
Durbin defends Jackson in opening statement

Senate Judiciary Chairman Dick Durbin, D-Ill., using his privilege as chairman, delivered an opening statement to begin Wednesday’s session, coming to the defense of Judge Jackson after he said Republicans unfairly attacked her record on Tuesday.

Durbin said some Republican senators used the hearings as “an opportunity to showcase talking points for the November election” and sought to “put in context” some of their accusations.

Rejecting what he called the “stereotype” that Jackson is “soft on crime,” he raised her endorsements from the Fraternal Order of Police and the International Association of Chiefs of Police and repeated that she is in the “mainstream” of sentencing when it comes to child pornography cases.

“I also think it’s ironic that the senator from Missouri who unleashed this discredited attack refuses to acknowledge that his own choice for a federal judge in the Eastern District of Missouri has done exactly what you did,” Durbin said, referring to an orchestrated attack from Republican Sen. Josh Hawley.

Durbin also defended her record representing Guantanamo detainees which several Republicans took issue with, reminding senators of the 6th Amendment to the Constitution which they serve.

“Your nomination turned out to be a testing ground for conspiracy theories and culture war theories. The more bizarre charges against you and your family, the more the social media scoreboard lit up yesterday,” Durbin said. “I’m sorry that we go to go through this. These are not theories in the mainstream of America but they have been presented here as such.”

“You are a respected, successful woman of color. You’ve been approved three times by this committee for increasingly significant judicial assignments,” he added. “America is ready for this Supreme Court glass ceiling to finally shatter, and you, Ketanji Brown Jackson are the person to do it.”

Mar 23, 9:12 am
Day 2 of questioning kicks off

The Senate Judiciary Committee reconvened just after 9 a.m. Wednesday on Capitol Hill where Judge Jackson will undergo another marathon day of questioning.

While Democrats have the votes to confirm Biden’s high court nominee on their own, Jackson’s final day of questioning could prove critical to the White House goal of securing at least some Republican support and shoring up the court’s credibility.

GOP Sens. Susan Collins, Lisa Murkowski and Lindsey Graham, who sits on the Senate Judiciary Committee, voted in favor of Jackson’s confirmation to the D.C. Circuit last June, but after private meetings with Jackson this month, all three have been noncommittal about supporting her again.

The spotlight on a historic nominee — and the court itself during such a consequential term of cases — has also provided the opportunity for both political parties to appeal to key voting constituencies ahead of the midterm campaign season.

Mar 23, 8:46 am
What to expect Wednesday

Judge Jackson faces another round of all-day questions on Wednesday from the Senate Judiciary Committee, where she will need a majority of senators to approve her Supreme Court nomination out of committee before it sees a full floor vote.

Because the committee did not finish its first round of questioning on Tuesday, it will pick back up at 9 a.m. with 30-minute rounds from Democratic Sen. John Ossoff and Republican Sen. Thom Tillis, R-N.C. Notably, Sen. Marsha Blackburn, R-Tenn., traded spots with Tillis to go Tuesday evening, when she asked the Supreme Court nominee to provide a definition for “woman.”

While Democrats have used the hearings to give Jackson a chance to defend her record and display her personal side, Republicans have so far played to long-running culture wars, with Sen. Ted Cruz asking Biden’s nominee about critical race theory and Sen. Lindsey Graham probing her faith, he said, to make a point about how Democrats scrutinized Justice Amy Coney Barrett.

For the second round of questioning, each of the committee’s 11 Republican and 11 Democratic members will then have up to 20 minutes to question Jackson one on one in order of seniority.

On Thursday, senators can ask questions of the American Bar Association and other outside witnesses.

Mar 23, 8:14 am
Key takeaways from first day of questioning

Judge Jackson took questions for nearly 13 hours Tuesday before the Senate Judiciary Committee — where Democrats hailed her for breaking barriers and Republicans attempted to brand her as “soft on crime” — but Jackson refused to play into political fights and vowed repeatedly to “stay in my lane.”

In several tense exchanges with Republicans on the committee, Jackson defended her record as both a lawyer and a judge.

She called her service as a federal public defender — including defense of accused terrorists held without charge at Guantanamo Bay — an act of “standing up for the constitutional value of representation.” Faced with allegations she was too lenient on child pornography offenders, Jackson stressed that she followed federal sentencing guidelines set by Congress and got emotional when talking about reviewing evidence in what she called “heinous” and “egrigous” crimes.

Jackson also resisted repeated attempts to classify her “judicial philosophy,” claiming she doesn’t have one, but she did lay out a “methodology” she’s developed for approaching each case: proceed from a position of neutrality, evaluate the facts and apply the law to facts in the case.

Asked also about same-sex marriage, abortion and the right to own a gun in the home, Jackson said the Supreme Court has established those rights and that she is bound to stare decisis as a jursist.

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