Texas senators on March 22, turned an otherwise normal confirmation hearing for the Supreme Court of the United States into an aggressive grilling of Judge Ketanji Brown Jackson for her record on crime and terrorism.
Senator John Cornyn, at the opening of confirmation hearings on March 21, said he was “troubled” by Jackson’s zealous defense of terrorists.
Meanwhile, Senator Ted Cruz painted Jackson as being soft on crime, especially sexual predators.
Cornyn said, “I’m a bit troubled by some of the positions you’ve taken and arguments that you’ve made representing people who have committed terrorist acts against the United States, and other dangerous criminals.”
During March 22’s questioning, Cornyn reiterated his concerns.
“Why in the world would you call Secretary of Defense [Donald] Rumsfeld and George W. Bush war criminals in a legal filing?” Cornyn asked Jackson.
“I’m talking about when you were representing a member of the Taliban, and the Department of Defense identified him as an intelligence officer of the Taliban, and you referred to the secretary of defense and the sitting president of the United States as war criminals? Why would you do something like that?”
The source for Cornyn’s questions were three petitions filed by Jackson accusing the government of sanctioning torture, which, according to international law, is a war crime. The filings state that Bush and Rumsfeld authorized torture to interrogate prisoners at Guantanamo Bay.
Cornyn drew the conclusion that since torture is a war crime, Jackson’s allegations were clearly aimed at painting Bush and Rumsfeld as war criminals.
Jackson said she didn’t remember the reference and added, “I did not intend to disparage the president or the secretary of defense.”
Cornyn jogged her memory by reading a filing she had written.
“Respondents’ acts directing, ordering, confirming, ratifying, and/or conspiring to bring about the torture and other inhumane treatment of petitioner Khiali-Gul constitute war crimes and/or crimes against humanity in violation of the law of nations under the Alien Tort Statute,” Jackson wrote.
Violations of the Geneva Conventions and laws of war constituted “unlawful conduct,” Jackson had argued in the filing and wrote that Khiali-Gul “has been and is forced to suffer severe physical and psychological abuse and agony, and is therefore entitled to declaratory and injunctive relief, and such other relief as the court may deem appropriate.”
Democrats adamantly replied in response that Cornyn had fouled up beyond recognition Jackson’s legal claims about the torture of militants and the U.S. practices of interrogation.
Senator Dick Durbin, (D-Ill.), chairman of the judiciary committee said to Jackson, “To be clear, there was no time where you called President Bush or Secretary Rumsfeld a ‘war criminal.”’
He added, “Your filing was part of your professional responsibility to zealously advocate for your clients.”
Cornyn, a former trial judge and justice on the Texas Supreme Court, had said to Jackson during opening remarks, “I understand the importance of zealous advocacy, but it appears that sometimes this advocacy has gone beyond the pale.”
The Bush administration had maintained that waterboarding and various interrogation techniques used by the United States did not constitute torture as defined by U.S. and International Law.
Senator Cruz, who was one year ahead of Jackson at Harvard Law School, already had questioned Jackson’s ability to exercise restraint if confirmed to the Supreme Court, based on her record of sentencing.
During questioning, Cruz presented a chart to show that as a trial judge, Jackson regularly handed down lighter sentences than sought by prosecutors, especially in cases involving sex offenders.
“I see a record of advocacy and activism as it concerns sexual predators, that stems back decades,” he said.
Reading from a note Jackson wrote in the Harvard Law Review in 1996, Cruz said that she had “raised doubts about community notification [of sexual predators] and raised significant doubts that civil commitment for sexual predators is unconstitutional.”
Jackson brushed aside her written comments as, “good fodder for a law school note,” at a time when sexual predator notification laws, “were relatively new.”
As for her sentencing of criminals, Jackson said, “As Congress directs, judges just don’t calculate the guidelines and stop. Judges have to take into account the personal circumstances of the defendant.”
Cornyn and Cruz both have addressed concerns about abortion.
Not specifically mentioning Roe v. Wade, the 1973 ruling making abortion legal, Cornyn cited on March 22 the precedent of overturning long-standing Supreme Court decisions, despite the legal doctrine of “stare decisis.” That doctrine states that once an issue is decided, courts should abide by the precedent.
Cornyn brought up court precedents that upheld segregated rail cars in 1896, Plessy v. Fergusson, and the Dred Scott decision, when the court upheld slavery before the Civil War, to illustrate his point.
“Thank goodness the Supreme Court has been willing to revisit its precedents, or we’d still be living with them [those decisions],” Cornyn said.
During opening remarks Cruz asked, “Will a justice protect the rights of the people, the rights of state legislators, to enact laws protecting life, protecting unborn life, stopping abominations like partial-birth abortion? Or will a justice view her job as a super legislator, striking down all such rights?”
