The televised hearings represent the best shot Republicans have at getting Jackson to make an unforced error, and while GOP senators are vowing to treat her fairly and respectfully, they are also expected to be tough at times during the two days of questions.
“Any nominee to the highest bench ought to welcome tough scrutiny, tough questions and a rigorous review of their record,” Senate GOP Leader Mitch McConnell (R-Ky.) said Monday, setting up what could be an at times uncomfortable day for Jackson. “The country deserves nothing less and this is what Senate Republicans will provide.”
GOP senators acknowledge that they are unlikely to be able to prevent Jackson’s confirmation to the court absent a significant misstep.
But the Judiciary Committee is stocked with GOP senators seen as having presidential ambitions, and they are likely to use the high-profile hearing to grab the spotlight.
Republicans are defending the hardball tactics arguing that their questions are tied to Jackson’s record, not personal attacks, making them fair game.
“We’re going to ask you what we think you need to be asked. And Senator Hawley, you need to ask her about her record as a district court judge. You should. I hope you do. And we’ll see what she says, very fair game,” said Sen. Lindsey Graham (R-S.C.).
Those remarks referred to Sen. Josh Hawley (R-Mo.), who has signaled he’ll bring up several cases handled by Jackson that are tied to child porn offenses.
“I think there’s a lot to talk about there and I look forward to talking about it,” Hawley said at Monday’s hearing.
Hawley added that he was bringing up the issue in advance of the hearing because he wasn’t trying to “play ‘gotcha’” with Jackson.
Hawley’s tactics quickly ramped up tensions in what had been a largely sleepy confirmation process, sparking fierce backlash from both the White House and Democrats who accused Hawley of taking Jackson’s statements from the bench out of context.
“What he has done has been discredited already by The Washington Post, ABC News, CNN and a writer from the National [Review],” Sen. Dick Durbin (Ill.), the second-ranking Senate Democrat, said Monday.
“So in my mind, we know that there’s no substance behind it. …There’s a big story to be told that Hawley is leaving out,” Durbin, who chairs the Judiciary Committee, added.
Former Sen. Doug Jones (D-Ala.), who has been shepherding Jackson’s nomination through the Senate, added that “she will be able to talk about each one of those cases.”
“I think what is going to be best is to let Judge Jackson to explain those,” Jones said.
Media fact checks by both the AP and The Washington Post have found that Hawley’s attacks are missing context. Andrew Bates, a spokesperson for the White House, said last week that the “overwhelming majority of her cases involving child sex crimes, the sentences Judge Jackson imposed were consistent with or above what the government or U.S. Probation recommended.”
Hawley pushed back on the Post, accusing them of “regurgitating White House talking points.”
Some Republicans have privately warned for weeks against going all in against Jackson, who would be the first Black female justice. They also argue that there are better issues—namely the economy—for the party to focus on heading into November.
Hawley, who memorably gave a thumbs up to the cameras ahead of challenging the Electoral College results on Jan. 6, has shown a willingness to buck leadership, who were unhappy with those challenges. But top Republicans this time are also publicly standing by Hawley.
“That’s part of the record. That’s part of the purpose of confirmation hearings,” said Sen. John Thune (R-S.D.), the No. 2 GOP senator.
Sen. John Cornyn (R-Texas), an advisor to McConnell and Judiciary Committee member, added he believed they were “legitimate questions about her sentencing practice and procedure.”
Republicans argue that their questions about sex-related cases is different than a vitriolic end to Justice Brett Kavanaugh’s confirmation. Decades-old sexual assault allegations against Kavanaugh were leaked after he had already testified before the Senate Judiciary Committee.
Kavanaugh denied the allegations but the accusations threw the nomination into chaos, with protestors confronting senators around the Capitol complex and the Senate Judiciary Committee convening a rare, emotional follow-up hearing at which Kavanaugh testified.
“Democratic senators are not going to have their windows busted by groups. It means that no Republican senator is going to unleash on you an attack about your character when the hearing is almost over,” Graham said.
Hawley isn’t the only GOP senator expected to raise the issue.
Sen. Marsha Blackburn (R-Tenn.) offered the most blistering attack against Jackson during the first day of the hearing.
“You also have a consistent pattern of giving child porn offenders lighter sentences. On average, you sentenced child porn defendants to over five years below the minimum sentence recommended by the sentencing guidelines,” Blackburn said.
Blackburn also hit on a laundry list of talking points that light up the GOP base including transgender athletes and coronavirus restrictions in school.
Sen. Chuck Grassley (R-Iowa), the top Republican on the Judiciary Committee, appeared to make a veiled reference to Hawley’s expected line of questioning to indicate that Republicans will talk about other things.
“As for her district court record, there have been some accusations that we cherry-picked some of Judge Jackson’s criminal cases. Don’t worry. We’re going to talk about the other ones too,” Grassley said.
Republicans are also expected to use the two days of questions to hit on a litany of issues, including if Jackson would support expanding the Supreme Court, an issue touted by some progressives.
Jones indicated that Jackson wouldn’t directly answer the question because “I don’t think any judicial nominee should be talking about legislative policy.”
They are also expected to bring up her work related to Guantanamo Bay detainees and work on a sentencing commission, as part of a larger arc to try to paint her as “soft on crime.”
“Even as America grapples with an historic crime wave, the President has chosen a nominee whose own supporters say her work as a criminal defense lawyer and on the U.S. Sentencing Commission will tilt her judgment in favor of convicts,” McConnell said.
Democrats brushed off the “soft on crime” criticism, pointing to her support from some law enforcement organizations.
“It is a campaign theme for 2022,” Durbin said. “I don’t think there’s any credibility to it.”