With three Republican senators breaking ranks to commit to voting to confirm Ketanji Brown Jackson to the Supreme Court, the controversial judge appears to be on a glide path to becoming the first black woman seated on the high bench. But the scandal of the White House allegedly covering up her judicial record, including the withholding of tens of thousands of pages of documents from Senate investigators, will outlast her appointment.
Senate sources say it sets a dangerous precedent for vetting future lifetime appointments.
For instance, the White House left the child-pornography distribution case of a schoolteacher, Lucas William Cane, out of materials it sent to the Judiciary Committee before last week’s confirmation hearings. Cane’s was one of the more heinous cases of child porn that Jackson heard as a federal trial judge on the D.C. bench from 2013 to 2021.
His May 2021 sentencing also was one of the last cases that came before her bench, making it even more politically radioactive.
The sources say the White House withheld the case files from the committee staff vetting Jackson because they simultaneously shattered two key talking points in defense of the judge—one, that she followed the recommendations of probation officers, and two, that she was “well within the mainstream” among other judges for sentencing child porn offenders.
“Judge Jackson and the White House left it off the list [of her child sex abuse cases] not only because it was one of her most egregious cases and most recent cases, but also because other Democrat judges on the D.C. District Court handed down tougher sentences against Cane’s co-defendants in the same child porn sting operation,” said an investigator involved in the vetting process. “She under-sentenced Cane, going below even the probation officer’s recommendation, at the same time she was under confirmation for the D.C. circuit [court of appeals].”
As part of the 2018 multistate sting operation targeting Cane and two co-defendants, the feds busted Cane posting files to the internet from a cache of “over 6,500 files depicting children who were elementary school age, middle school, and high school ages, all engaged in sexual acts or posing sexually,” according to the probation officer involved in the case, who recommended that Jackson sentence the defendant to 84 months in federal prison. According to a transcript of the May 2021 sentencing hearing, the officer pointed out that many of the files featured “sadistic and masochistic conduct” involving the underage victims.
According to the same transcript that the White House denied the Senate, the officer explained to the judge that “those videos and images depicted children engaged in masturbation and vaginal and anal penetration with objects like hairbrushes, pins, pencils, curling irons [and] other objects, and minors also engaged in anal and vaginal sex.”
An Obama appointee, Jackson disregarded the probation officer’s tough recommendation and sentenced Cane—a junior high school social studies teacher at the time—to the statutory mandatory minimum of 60 months. Her punishment was also below the prosecution’s own recommended prison time; however, it isn’t clear how far below, because the Biden administration has sealed the prosecutor’s sentencing memo in the case.
“The White House is still sealing the government’s sentencing memo—it’s still under seal and it shouldn’t be,” said the investigator close to the confirmation proceedings, who spoke on condition of anonymity. “They are covering it up, along with more than 48,000 pages of other documents, including her pre-sentencing reports and emails.”
Although the White House belatedly unsealed the transcript of Jackson’s sentencing hearing with Cane, almost 20 pages of the document are still blacked out. White House officials didn’t respond to requests for comment.
The full Senate is expected to vote on Jackson’s confirmation to the high court by the end of the week. Her appointment would be for life.
Countering Republican criticism that Jackson is soft on child porn criminals, the White House has said that her sentences weren’t out of line with those of other federal judges. However, Jackson handed down child porn sentences that were lighter than even her Democratic colleagues on the D.C. bench.
Cane was one of three defendants arrested in the same multistate child porn sting who were assigned to three D.C. judges, all appointed by Democratic presidents. Cane’s co-defendant Julian Philip Blanchard was assigned to D.C. District Judge James Boasberg, and their co-defendant, Daniel Allen Nickelson, was assigned to D.C. District Judge Paul Friedman. Records show that Jackson’s sentencing of her defendant Cane was the softest punishment meted out in the three cases.
Also, in a similar recent case, a Clinton-appointed federal judge in Texas sentenced a Houston school teacher to 11 years in prison for possessing lewd and sadistic images and videos of children. Last month, U.S. District Judge Keith Ellison put Robert Gasper Peri, 57, away for 135 months for receipt and possession of child porn and ordered him to pay $25,000 in restitution to the child victims.
“When she had discretion in sentencing, Judge Jackson always sentenced these monsters to significantly less time than what the federal guidelines recommended—47 percent below the national average for possession and 57 percent below the national average for distribution,” said Davis, who previously served as chief Senate Judiciary counsel for nominations.
At 51, Jackson is relatively young and could have an increasing influence on Supreme Court decisions over time, including ones involving crime and punishment.
Jackson marked the first time the Senate Judiciary Committee deadlocked (11–11) on a Supreme Court nod in the modern history of nominations. Democrats were forced to take an additional procedural step to “discharge” Jackson’s nomination from committee on April 4 in order to advance her to the Senate floor for a final vote later this week.
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