Mar 21, 2022
Progressives on Monday were joined by critics from across the political spectrum in denouncing Republican senators' attacks on Judge Ketanji Brown Jackson's record as a public defender and on the federal bench at her confirmation hearing to join the U.S. Supreme Court, as lawmakers including Sen. Josh Hawley and Chuck Grassley suggested Jackson is overly sympathetic to accused and convicted criminals, including child abusers.
On the first day of the judge's confirmation hearings, Hawley listed a number of cases that Jackson heard involving child pornography possession, accusing her of flouting federal sentencing guidelines and recommendations by prosecutors when she decided the offenders' punishment.
"The United States v. Cooper, there the defendant... distributed dozens of images of child pornography, possessed over 600. The federal guidelines recommended 151 to 188 months in prison," the Missouri Republican read from his notes on Jackson's career. "The prosecutor recommended 72 months. Judge Jackson gave the defendant 60 months."
Hawley listed several other cases in which he felt Jackson was too lenient, while Grassley (R-Iowa) questioned whether the judge could be an effective Supreme Court justice considering that as a former public defender, she may have "policy disagreements" with the United States' "criminal laws."
\u201c"There are Bill of Rights attorneys who want to protect defendants' constitutional rights, then there are what I've called criminal defense lawyers who disagree with our criminal laws that they have policy disagreements with. And of course, that's a very important difference."\u201d— Rose Wagner (@Rose Wagner) 1647876729
The senators' statements followed earlier complaints from Republicans about Jackson's work representing people detained at Guantanamo Bay, which lawmakers reportedly plan to bring up during the confirmation hearings.
Critics on Monday condemned Hawley's claims of Jackson's leniency regarding child abuse as particularly inflammatory, considering, as sentencing experts including Ohio State University law professor Douglas Berman recognize, federal guidelines for sentencing child pornography offenders are "dysfunctional and unduly severe":
In the nine cases, Judge Jackson followed the prosecutors' sentencing recommendations in two cases, and sentenced below the prison term suggested by the government in seven others. One case, U.S. v. Hillie, distorts the average deviation from the prosecutors' recommendations, as the government there sought a sentence of 45 years and Judge Jackson imposed a sentence of "only" 29.5 years. Leaving that case out of the average, in the other eight cases, Judge Jackson's sentence was only about 1.8 years below the recommendation of prosecutors (and about 0.6 years above the defense recommendations).
"Judge Jackson's record in these [child pornography] cases does show she is quite skeptical of the ranges set by the CP guidelines, but so too were prosecutors in the majority of her cases and so too are district judges nationwide (appointed by presidents of both parties)," Berman wrote last week.
As UC Irvine School of Law professor Erwin Chemerinsky wrote at Common Dreams on Monday, in five of the cases Hawley has zeroed in on as the Senate considers Jackson's nomination, the judge "imposed the sentences that were the same as or greater than what the United States probation office recommended."
"Lacking any grounds for opposition, Republicans are resorting to slime," Chemerinsky wrote.
Observers warned that Hawley's attempt to smear Jackson's record may have implications beyond the judge's potential confirmation, noting that the senator's focus on the sentences appear designed "to create an association between [Jackson] and this broader trope"--"that public institutions are overrun with child predators," an idea that formed the foundation for the QAnon conspiracy theory which has been linked to several acts of violence, including the January 6, 2021 attack on the U.S. Capitol.
Progressive attorney Christine Pelosi denounced Hawley's attacks as "vile."
\u201cAs one who prosecuted child porn, I find it vile for Josh Hawley to use victims to smear Judge Jackson. Period. I also note his silence about Trump\u2019s judges who did what Jackson did: evaluated facts and sentenced defendants to terms lower than suggested by the federal guidelines.\u201d— Christine Pelosi (@Christine Pelosi) 1647884436
"I had hoped my colleagues in the other chamber could not debase themselves any further," added Rep. Mondaire Jones (D-N.Y.).
\u201cKetanji Brown Jackson possesses so much more intelligence and integrity than Josh Hawley and the other Republican Senators engaged in the smear campaign against her.\n\nI had hoped my colleagues in the other chamber could not debase themselves any further.\u201d— Mondaire Jones (@Mondaire Jones) 1647869959
Senate Judiciary Committee Chair Dick Durbin (D-Ill.) was among the critics who noted that the right-wing National Review published an essay condemning Hawley's earlier statements against Jackson, with contributing editor Andrew McCarthy calling them "meritless to the point of demagoguery."
"Do you know how terrible you have to be for the National Review to call you out for lying?" Jones asked on social media Monday. "Josh Hawley is an Olympic liar."
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