WASHINGTON — In the court of public opinion — like the Supreme Court nomination hearings coming up this week — politicians ask witnesses questions to score points for their side. In court, judges ask questions to get answers.
This difference will be exposed when Judge Ketanji Brown Jackson answers questions posed by Republicans and Democrats, the former mainly opposing his nomination, the latter favoring it.
But the distinction between a political inquiry and a judicial inquiry has already been lost as Republicans in the days leading up to her hearings selectively cited her record in an attempt to press charges against her. They treat questions from her judge’s life over the years as statements of opinion to portray her as an outlier not deserving of a High Court seat.
Their claims on this front do not hold up to scrutiny:
GOP SEN. JOSH HAWLEY OF MISSOURI: “Judge Jackson opined that there might be a type of ‘less serious child porn offender.’ …’A ‘less serious’ child porn offender?” – tweet Wednesday.
THE FACTS: She said no such thing. She asked about it.
Jackson was vice chairman of the US Sentencing Commission when it held a sentencing guidelines hearing in 2012.
She told the hearing that she was surprised at the testimony of a Justice Department expert that, as she said, some child sex offenders may in fact “not be pedophiles,” but perhaps “loners” looking for like-minded company in child pornography circles. Being surprised by a statement and wanting to know more is not the same as approving it.
“So I’m wondering if you could say there’s a — there might be a — less serious child porn offender who engages in the group experience type of conduct?” she asked the expert witness. “They’re very technologically sophisticated, but they’re not necessarily interested in child pornography?”
From these questions, Hawley extrapolated that Jackson had drawn conclusions, while she had not.
But several researchers in behavioral sciences testified during this hearing that there may be non-sexual motivations among some of the child sex offenders. This is not a radical view. And many judges see a distinction between those who produce child pornography and those who receive it.
In 2020, in denying compassionate medical release to a convicted sex offender serving nearly six years in prison, Judge Jackson said, “The possession and distribution of child pornography is an extremely serious crime because it involves the trade in depictions of actual child sexual abuse, and the abuse these child victims endure will remain available on the internet forever.”
REPUBLICAN NATIONAL COMMITTEE: “Ketanji Brown Jackson’s record also includes defending terrorists.” – tweet from RNC Research on February 25.
THE FACTS: This is misleading on several fronts.
First, she did not defend convicted terrorists but rather suspects. The RNC ignored the presumption of innocence that is at the heart of the justice system. Second, defending those accused of a crime is exactly what defense attorneys are supposed to do. That’s why public defender offices exist — to represent suspects who can’t afford an attorney or who have cases that hired attorneys don’t want to take on.
Jackson was working in the Federal Public Defender’s Office in the District of Columbia when she was assigned to four Guantanamo Bay detainees, later continuing some of her work with them in private practice. This was after the Supreme Court ruled in 2004 that detainees could sue to challenge their indefinite detention.
Even those who were charged had their charges dropped and all were eventually released. None have been convicted by the military commissions set up to try the detainees.
Jackson was following the textbooks when she wrote that under the “rules of ethics which apply to lawyers, a lawyer has a duty to represent his clients diligently”, regardless of the lawyer’s personal opinions.
HAWLEY: “Judge Jackson went below the maximum, the minimum and below what the government asked for in every case for which we can find records, except two. In both cases, the law required her to impose the sentence recommended by the government.” – statement Friday.
THE FACTS: Not really. In most of the child pornography cases where she imposed lighter sentences than the federal guidelines suggested, prosecutors or other Justice Department officials generally argued for lighter sentences than those recommended by the guidelines. federal.
It is therefore not correct to state that all but two of the sentences she handed down in such cases, when she served as a district court judge from 2013 to last year, were ” less than what the government had requested.
HAWLEY: “As soon as she was in law school, Judge Jackson wondered about having convicts registered as sex offenders.” – tweet Wednesday.
THE FACTS: That’s right. She questioned the mandatory law school sex offender registry, but did not speak out explicitly against the practice.
Jackson wrote an unsigned statement for the Harvard Law Review in 1996 that suggested judges should be wary of mixing broader public safety concerns with punitive measures when sentencing sex offenders.
He said in part: “In the current climate of fear, hatred and revenge associated with the release of convicted sex criminals, courts must be particularly alert to legislation that ‘uses the rhetoric of public health and safety’. to justify procedures which are, in essence, punishment and detention.'”
This article has been updated to CORRECT that Jackson was a district judge when deciding child pornography cases, not a circuit court judge.
Associated Press writers Hope Yen, Jessica Gresko, Mary Clare Jalonick and Chris Megerian contributed to this report.
EDITOR’S NOTE — A look at the veracity of politicians’ claims.
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